Exhibit 4.1
Execution Version
Dated as of April 26, 2011
Among
XXXXXXX KODAK COMPANY
and
KODAK CANADA INC.
as Borrowers
and
THE LENDERS NAMED HEREIN
as Lenders
and
BANK OF AMERICA, N.A.
as Administrative Agent and Co-Collateral Agent
and
CITICORP USA, INC
as Co-Collateral Agent
and
CITIBANK, N.A.
and
XXXXX FARGO CAPITAL FINANCE LLC
as Co-Syndication Agents
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
CITIGROUP GLOBAL MARKETS INC.
and
XXXXX FARGO CAPITAL FINANCE LLC
as Joint Lead Arrangers and Joint Bookrunners
i
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
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SECTION 1.01. Certain Defined Terms |
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6 |
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SECTION 1.02. Computation of Time Periods |
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34 |
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SECTION 1.03. Accounting Terms |
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34 |
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SECTION 1.04. Reserves |
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34 |
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SECTION 1.05. Letter of Credit Amount |
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34 |
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ARTICLE II |
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AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT |
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SECTION 2.01. The Advances and Letters of Credit |
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34 |
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SECTION 2.02. Making the Advances |
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36 |
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SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit |
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37 |
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SECTION 2.04. Fees |
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39 |
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SECTION 2.05. Termination or Reduction of the Commitments |
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40 |
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SECTION 2.06. Repayment of Advances |
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40 |
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SECTION 2.07. Interest on Advances |
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41 |
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SECTION 2.08. Interest Rate Determination |
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41 |
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SECTION 2.09. Optional Conversion of Advances |
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42 |
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SECTION 2.10. Prepayments of Advances |
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43 |
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SECTION 2.11. Increased Costs |
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43 |
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SECTION 2.12. Illegality |
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44 |
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SECTION 2.13. Payments and Computations |
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44 |
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SECTION 2.14. Taxes |
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45 |
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SECTION 2.15. Sharing of Payments, Etc. |
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47 |
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SECTION 2.16. Evidence of Debt |
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48 |
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SECTION 2.17. Use of Proceeds |
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48 |
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SECTION 2.18. Cash Management |
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48 |
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SECTION 2.19. Defaulting Lenders |
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50 |
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SECTION 2.20. Replacement of Certain Lenders |
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52 |
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SECTION 2.21. Increase in the Aggregate Commitments |
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52 |
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SECTION 2.22. Failure to Satisfy Conditions Precedent |
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54 |
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SECTION 2.23. Obligations of Lenders Several |
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54 |
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ARTICLE III |
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CONDITIONS TO EFFECTIVENESS AND LENDING |
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SECTION 3.01. Conditions Precedent to Effectiveness |
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54 |
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SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance |
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57 |
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SECTION 3.03. Additional Conditions to Issuances |
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57 |
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SECTION 3.04. Determinations Under this Agreement |
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57 |
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ARTICLE IV |
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REPRESENTATIONS AND WARRANTIES |
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SECTION 4.01. Representations and Warranties of the Company |
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58 |
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ARTICLE V |
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COVENANTS OF THE COMPANY |
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SECTION 5.01. Affirmative Covenants |
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61 |
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SECTION 5.02. Negative Covenants |
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68 |
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SECTION 5.03. Financial Covenant |
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74 |
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ARTICLE VI |
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EVENTS OF DEFAULT |
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SECTION 6.01. Events of Default |
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74 |
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SECTION 6.02. Actions in Respect of the Letters of Credit upon Default |
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76 |
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SECTION 6.03. Collection Allocation Mechanism |
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77 |
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SECTION 6.04. Application of Funds |
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77 |
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ARTICLE VII |
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GUARANTY |
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SECTION 7.01. Guaranty; Limitation of Liability |
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79 |
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SECTION 7.02. Guaranty Absolute |
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80 |
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SECTION 7.03. Waivers and Acknowledgments |
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81 |
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SECTION 7.04. Subrogation |
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81 |
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SECTION 7.05. Guaranty Supplements |
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82 |
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SECTION 7.06. Subordination |
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82 |
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SECTION 7.07. Continuing Guaranty; Assignments |
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82 |
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2
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ARTICLE VIII |
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THE AGENT |
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SECTION 8.01. Authorization and Action |
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83 |
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SECTION 8.02. Agent Individually |
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83 |
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SECTION 8.03. Duties of Agent; Exculpatory Provisions |
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84 |
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SECTION 8.04. Reliance by Agent |
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85 |
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SECTION 8.05. Indemnification |
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85 |
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SECTION 8.06. Delegation of Duties |
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86 |
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SECTION 8.07. Resignation of Agent |
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86 |
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SECTION 8.08. Non-Reliance on Agent and Other Lenders |
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87 |
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SECTION 8.09. No Other Duties, etc. |
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87 |
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SECTION 8.10. Agent May File Proofs of Claim |
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87 |
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SECTION 8.11. Intercreditor Arrangements |
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88 |
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SECTION
8.12. Successor Agent |
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88 |
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ARTICLE IX |
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MISCELLANEOUS |
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SECTION 9.01. Amendments, Waivers |
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90 |
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SECTION 9.02. Notices, Etc. |
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90 |
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SECTION 9.03. No Waiver; Remedies |
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92 |
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SECTION 9.04. Costs and Expenses |
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92 |
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SECTION 9.05. Payments Set Aside |
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94 |
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SECTION 9.06. Right of Set-off |
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94 |
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SECTION 9.07. Binding Effect |
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94 |
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SECTION 9.08. Assignments and Participations |
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94 |
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SECTION 9.09. Confidentiality |
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97 |
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SECTION 9.10. Execution in Counterparts |
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97 |
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SECTION 9.11. Survival of Representations and Warranties |
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98 |
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SECTION 9.12. Severability |
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98 |
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SECTION 9.13. Jurisdiction |
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98 |
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SECTION 9.14. No Liability of the Issuing Banks |
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99 |
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SECTION 9.15. PATRIOT Act Notice |
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99 |
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3
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SECTION 9.16. Release of Collateral; Termination of Loan Documents |
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99 |
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SECTION 9.17. Judgment Currency |
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100 |
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SECTION 9.18. No Fiduciary Duty |
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101 |
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SECTION 9.19. Electronic Execution of Assignments and Certain Other Documents |
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101 |
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4
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Schedules |
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Schedule I
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Commitments |
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Schedule II
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-
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Subsidiary Guarantors and Material Subsidiaries |
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Schedule III
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Accounts |
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Schedule 2.01(b)
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Existing Letters of Credit |
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Schedule 5.02(a)
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Existing Liens |
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Schedule 5.02(d)
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Existing Debt |
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Schedule 9.02
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Agent’s Office; Certain Address for Notices |
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Exhibits |
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Exhibit A
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-
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Form of Note |
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Exhibit B
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-
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Form of Notice of Borrowing |
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Exhibit C
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Form of Assignment and Acceptance |
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Exhibit D-1
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Form of US Security Agreement |
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Exhibit D-2
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Form of Canadian Security Agreement |
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Exhibit F
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-
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Form of Guaranty Supplement |
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Exhibit G
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Form of Borrowing Base Certificate |
5
Dated as of April 26, 2011
XXXXXXX KODAK COMPANY, a New Jersey corporation (the “Company”), KODAK CANADA INC., a
corporation continued under the laws of the province of Ontario, Canada (“Kodak Canada”
and, together with the Company, the “Borrowers” and each, a “Borrower”), the banks,
financial institutions and other institutional lenders (the “Lenders”) and issuers of
letters of credit from time to time party hereto, XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED, CITIGROUP GLOBAL MARKETS INC. and XXXXX FARGO CAPITAL FINANCE LLC, as joint lead
arrangers and joint bookrunners, CITIBANK, N.A. and XXXXX FARGO CAPITAL FINANCE LLC, as
co-syndication agents, BANK OF AMERICA, N.A., as administrative agent (as successor administrative
agent to Citicorp USA Inc.) and co-collateral agent for the Lenders and CITICORP USA INC., as
co-collateral agent for the Lenders, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):
“Account Debtor” means a Person obligated on an Account.
“Account” has the meaning specified in the UCC.
“Administrative Questionnaire” means an Administrative Questionnaire in the
form approved by the Agent.
“ACH” means automated clearinghouse transfers.
“Activities” has the meaning specified in Section 8.02(b).
“Adjustment Date” has the meaning specified in the definition of “Applicable
Margin”.
“Advance” means a Canadian Advance and/or a US Advance, as the context may
require.
“Affected Lender” has the meaning specified in Section 2.20.
“Affiliate” means, as to any Person, any other Person that, directly or
indirectly, controls, is controlled by or is under common control with such Person or is a
director or executive officer of such Person. For purposes of this definition, the term
“control” (including the terms “controlling”, “controlled by” and “under common control
with”) of a Person means the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of such Person, whether through the ownership
of Voting Stock, by contract or otherwise.
“Agent” means, Bank of America, in its capacity as administrative agent (as
successor administrative agent to Citicorp USA Inc.) under the Loan Documents, or any
successor administrative agent appointed in accordance with Section 8.07. The Agent may
from time to time designate one or more of its Affiliates or branches (including, without
limitation, its Canada branch) to perform the functions of the Agent in connection with the
Canadian Revolving Credit Facility, in which case references herein to the “Agent” shall, in
connection with the Canadian Revolving Credit Facility, mean any Affiliate or branch so
designated.
“Agent Parties” has the meanings specified in Section 9.02(d).
6
“Agent’s Account” means the account of the Agent maintained by the Agent at its
office as set forth on Schedule 9.02.
“Agent’s Group” has the meaning specified in Section 8.02(b).
“Agent Sweep Account” has the meaning specified in Section 2.18(b).
“
Agreement” means this Second Amended and Restated
Credit Agreement, as
amended, restated, supplemented or otherwise modified from time to time.
“Applicable Lending Office” means, with respect to each Lender, such Lender’s
Domestic Lending Office in the case of a Base Rate Advance and such Lender’s Eurodollar
Lending Office in the case of a Eurodollar Rate Advance.
“Applicable Margin” means:
(i) 2.50% per annum, in the case of Eurodollar Rate Advances, and 1.50% per annum, in
the case of Base Rate Advances; provided that on and after the first Adjustment Date
occurring three months after the Effective Date, the Applicable Margin will be the rate per
annum as determined pursuant to the pricing grid below based upon the average daily Excess
Availability for the most recently ended fiscal quarter immediately preceding such
Adjustment Date:
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Applicable Margin for |
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Applicable Margin for |
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Excess Availability |
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Eurodollar Advances |
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Base Rate Advances |
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≥ $300,000,000 |
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2.25 |
% |
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1.25 |
% |
≥
$100,000,000 but < $300,000,000 |
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2.50 |
% |
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1.50 |
% |
< $100,000,000 |
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2.75 |
% |
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1.75 |
% |
Any change in the Applicable Margin resulting from changes in average daily Excess
Availability shall become effective on the date (the “Adjustment Date”) that is
three Business Days after the date on which the last Borrowing Base Certificate of any
fiscal quarter is delivered to the Lenders pursuant to Section 5.01(h)(ix) and shall remain
in effect until the next change to be effected pursuant to this paragraph. If any such
Borrowing Base Certificate is not delivered within the time period specified in Section
5.01(h)(ix), then, until the date that is three Business Days after the date on which such
Borrowing Base Certificate is delivered, the highest rate set forth in each column of the
above pricing grid shall apply.
In the event that at any time after the end of a fiscal quarter it is discovered that
the average daily Excess Availability for such fiscal quarter used for the determination of
the Applicable Margin was less than the actual amount of the average daily Excess
Availability for such fiscal quarter, the Applicable Margin for such prior fiscal quarter
shall be adjusted to the applicable percentage based on such actual average daily Excess
Availability for such fiscal quarter and any additional interest for the applicable period
payable as a result of such recalculation shall be promptly paid to Lenders.
Notwithstanding the foregoing, upon the implementation of the Default Interest rate
pursuant to Section 2.07(b) hereof, the Applicable Margin shall be the highest rate set
forth in each column of the pricing grid above.
“Applicable Percentage” means, 0.50% per annum; provided, that, on and
after the first Adjustment Date occurring three full months after the Effective Date the
Applicable Percentage will be determined by reference to the pricing grid below based upon
Average Revolving Credit Facility Usage for the most recently ended fiscal quarter
immediately preceding such Adjustment Date:
7
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Average Revolving Credit Facility Usage |
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Applicable Percentage |
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≥ 50% |
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0.375 |
% |
< 50% |
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0.50 |
% |
“Appropriate Lender” has the meaning specified in Section 2.15.
“Approved Fund” means any Fund that is administered or managed by (i) a Lender,
(ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that
administers or manages a Lender.
“Arrangers” means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Citigroup
Global Markets Inc. and Xxxxx Fargo Capital Finance LLC in their respective capacities as
joint lead arrangers and joint bookrunners.
“Assignment and Acceptance” means an assignment and acceptance entered into by
a Lender and an Eligible Assignee, and accepted by the Agent, in substantially the form of
Exhibit C hereto.
“Assuming Lender” has the meaning specified in Section 2.21(d).
“Assumption Agreement” has the meaning specified in Section 2.21(d).
“Available Amount” of any Letter of Credit means, at any time, the maximum
amount available to be drawn under such Letter of Credit at such time (assuming compliance
at such time with all conditions to drawing).
“Average Revolving Credit Facility Usage” means, for any period, the percentage
obtained by dividing (X) the amount obtained by adding the Revolving Credit Facility Usage
at the end of each day for the period in question and by dividing such sum by the number of
days in such period by (Y) the amount obtained by adding the aggregate Revolving Credit
Commitments outstanding at the end of each day for the period in question and by dividing
such sum by the number of days in such period.
“Bankruptcy Law” means any proceeding of the type referred to in Section
6.01(e) of this Agreement or Title 11, U.S. Code, or any similar foreign, federal,
provincial or state law for the relief of debtors, including, without limitation, the
Bankruptcy and Insolvency Act (Canada) and the Companies’ Creditors Arrangement Act
(Canada).
“Bank of America” means Bank of America, N.A. and its successors.
“Bank of Canada Overnight Rate” means the rate of interest charged by the Bank
of Canada on one-day loans to financial institutions, for such day.
“Base Rate” means for any day a fluctuating rate per annum equal to the highest
of (a) the Federal Funds Rate plus 1/2 of 1% (or, in the case of Canadian Advances, the Bank
of Canada Overnight Rate plus 1/2 of 1%), (b) the rate of interest in effect for such day as
publicly announced from time to time by the Agent as its “prime rate” (or in the case of
Canadian Advances, as its Canada branch’s “base rate” for loans in Dollars made in Canada)
and (c) the Eurodollar Rate for a one-month Interest Period on such day (or if such day is
not a Business Day, the immediately preceding Business Day) plus 1.00% . The “prime rate”
and the “base rate” is a rate set by the Agent based upon various factors including the
Agent’s costs and desired return, general economic conditions and other factors, and is used
as a reference point for pricing some loans, which may be priced at, above, or below such
announced rate. Any change in such prime rate or base rate announced by the Agent shall
take effect at the opening of business on the day specified in the public announcement of
such change.
“Base Rate Advance” means an Advance that bears interest as provided in Section
2.07(a)(i).
“Borrower Information” has the meaning specified in Section 9.09.
8
“Borrowing” means a Canadian Borrowing and/or a US Borrowing, as the context
may require.
“Borrowing Base” means the Canadian Borrowing Base and/or the US Borrowing
Base, as the context may require.
“Borrowing Base Certificate” means a certificate in substantially the form of
Exhibit G hereto (with such changes therein as may be required by the Agent to
reflect the components of, and Reserves against, the Borrowing Base as provided for
hereunder from time to time), executed and certified as accurate and complete by a
Responsible Officer of the Company, which shall include detailed calculations as to the
Borrowing Base as reasonably requested by the Agent.
“Borrowing Base Deficiency” means, at any time and as to each Borrower, the
failure of (a) the Borrowing Base of such Borrower at such time to equal or exceed (b) the
Canadian Revolving Credit Facility Usage or the US Revolving Credit Facility Usage, as the
context may require.
“
Business Day” means a day of the year on which banks are not required or
authorized by law to close in
New York City and, with respect to Canadian Advances, Toronto,
Ontario and, if the applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
“CAM” means the mechanism for the allocation and exchange of interests in the
Advances, participations in Letters of Credit and collections thereunder established
pursuant to Section 6.03.
“CAM Exchange” means the exchange of the Lenders’ interests provided for in Section
6.03.
“CAM Exchange Date” means the first date after the Effective Date on which
there shall occur (a) any Event of Default under Section 6.01(e) with respect to a Borrower
and (b) a termination of Revolving Credit Commitments pursuant to Section 6.01.
“CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal,
of which (a) the numerator shall be the sum, without duplication, of (i) the Canadian
Revolving Credit Exposure, if any, of such Lender, (ii) the US Revolving Credit Exposure, if
any, of such Lender and (iii) the aggregate amount of any other Obligations otherwise owed
to such Lender pursuant to the Loan Documents, in each case immediately prior to the CAM
Exchange Date, and (b) the denominator shall be the sum of (i) the aggregate US Revolving
Credit Exposure of all the Lenders, (ii) the aggregate Canadian Revolving Exposure of all
Lenders and (iii) the aggregate amount of any other Obligations otherwise owed to any of the
Lenders pursuant to the Loan Documents, in each case immediately prior to the CAM Exchange
Date.
“Canadian Advance” means an advance by a Lender as part of a Canadian Borrowing
and refers to a Base Rate Advance or a Eurodollar Rate Advance and shall be deemed to
include any Canadian Protective Advance made hereunder.
“Canadian Borrowing” means a borrowing consisting of simultaneous Advances of
the same Type made by each of the Canadian Lenders pursuant to Section 2.01(a)(ii).
“Canadian Borrowing Base” means, at any time, as to the Canadian Loan Parties,
the Dollar Equivalent of (a) the Canadian Loan Value less (b) applicable Reserves at
such time.
“Canadian Collateral” means all “Collateral” referred to in the Canadian
Security Agreement and the other Collateral Documents relating to security under the
Canadian Revolving Credit Facility, and all other property of the Canadian Loan Parties that
is or is intended to be subject to any Lien in favor of the Agent for the benefit of the
Canadian Secured Parties pursuant to the terms of the Collateral Documents.
“Canadian Dollars” or “Cdn $” means the lawful money of Canada.
9
“Canadian Excess Availability” means, at any time, (1) the Canadian Line Cap
minus (2) the Canadian Revolving Credit Facility Usage at such time.
“Canadian Guaranteed Obligations” has the meaning specified in Section
7.01(a)(ii).
“Canadian Lender” means, at any time, a Lender that has a Canadian Revolving
Credit Commitment at such time.
“Canadian Line Cap” means at any time, the lesser of (i) the Canadian Borrowing
Base and (ii) the Canadian Revolving Credit Commitments.
“Canadian Loan Party” means Kodak Canada and each Canadian Subsidiary
Guarantor.
“Canadian Loan Value” means, at any time of determination, an amount
(calculated based on the most recent Borrowing Base certificate delivered to the Agent in
accordance with the Agreement) equal to (a) with respect to Eligible Receivables of the
Canadian Loan Parties, 85% of Eligible Receivables less the applicable Dilution Reserve
plus (b) with respect to Eligible Inventory of the Canadian Loan Parties, the lesser
of (i) 65% of Eligible Inventory and (ii) 85% of the Net Orderly Liquidation Value of
Eligible Inventory (based on the then most recent independent inventory appraisal) on any
date of determination.
“Canadian Obligations” means all liabilities and obligations of every nature of
each Canadian Loan Party from time to time owed to the Agent, the Co-Collateral Agents, the
Lenders, the other Canadian Secured Parties or any of them, under (x) the Loan Documents
relating to the Canadian Revolving Credit Facility and (y) subject to Section 8.13, the
Canadian Secured Agreements, whether for principal, interest (including interest which, but
for the filing of a petition or other proceeding in a bankruptcy or insolvency proceeding
with respect to such Canadian Loan Party, would have accrued on any Obligation, whether or
not a claim is allowed against such Loan Party for such interest in the related bankruptcy
or insolvency proceeding), fees, expenses, indemnification or otherwise and whether primary,
secondary, direct, indirect, contingent, fixed or otherwise.
“Canadian Pension Plans” means each plan, program or arrangement which is
required to be registered as a pension plan under any applicable pension benefits standards
or tax statute or regulation in Canada (or any province or territory thereof) maintained or
contributed to by, or to which there is or may be an obligation to contribute by, any
Canadian Loan Party or its Subsidiaries in respect of its Canadian employees or former
employees.
“Canadian Priority Payables” means, at any time the Dollar Equivalent of:
(a) the amount past due and owing by Kodak Canada and any other Canadian Loan Party, or
the accrued amount for which each of Kodak Canada and any other Canadian Loan Party has an
obligation to remit to a governmental authority or other Person pursuant to any applicable
law, in respect of (i) pension fund obligations; (ii) employment insurance; (iii) goods and
services taxes, sales taxes, harmonized taxes, excise taxes, value added taxes, employee
income taxes and other taxes or governmental royalties payable or to be remitted or
withheld; (iv) workers’ compensation; (v) wages, vacation pay and amounts payable under the
Wage Earner Protection Program Act (Canada) or secured by Section 81.3 or 81.4 of the
Bankruptcy and Insolvency Act (Canada); and (vi) other like charges and demands; in each
case, in respect of which any governmental authority or other Person may claim a security
interest, hypothec, prior claim, lien, trust (statutory or deemed) or other claim or Lien
ranking or capable of ranking in priority to or pari passu with one or more of the Liens
granted in the Collateral Documents; and
(b) the aggregate amount of any other liabilities of Kodak Canada and any other
Canadian Loan Parties (i) in respect of which a trust has been or may be imposed on any
Collateral of any Canadian Loan Party to provide for payment or (ii) which are secured by a
security interest, hypothec, prior claim, pledge, lien, charge, right, or claim or other
Lien on any Collateral of any Canadian Loan Party; in each case, pursuant to any applicable
law and which trust, security interest, hypothec, prior claim, pledge, lien,
10
charge, right, claim or Lien ranks or is capable of ranking in priority to or pari
passu with one or more of the Liens granted in the Collateral Documents.
“Canadian Priority Payables Reserve” means, on any date of determination for
the Canadian Borrowing Base, a reserve established from time to time by the Agent in its
reasonable discretion in such amount as the Agent may determine reflects the unpaid or
unremitted Canadian Priority Payables by the Canadian Loan Parties, which would give rise to
a Lien under applicable laws with priority over, or pari passu with, the Liens of the Agent
for the benefit of the Canadian Secured Parties.
“Canadian Protective Advances” has the meaning specified in Section 2.01(c).
“Canadian Qualified Lender” means a financial institution that is not
prohibited by law, including under the Bank Act (Canada), from having a Canadian Revolving
Credit Commitment or making any Canadian Advances to Kodak Canada hereunder, and if such
financial institution is not resident in Canada and is not deemed to be resident in Canada
for purposes of the Income Tax Act (Canada), that financial institution deals at arm’s
length with Kodak Canada and the other Canadian Loan Parties for purposes of the Income Tax
Act (Canada).
“Canadian Revolving Credit Commitment” means as to any Lender (a) the amount
set forth opposite such Lender’s name on Schedule I hereto as such Lender’s “Canadian
Revolving Credit Commitment”, which shall be designated as a Commitment under the Revolving
Credit Facility, (b) that is an Assuming Lender, the amount set forth in the applicable
Assumption Agreement or (c) if such Lender has entered into an Assignment and Acceptance,
the amount set forth for such Lender in the Register maintained by the Agent pursuant to
Section 9.08(e), as such amount may be reduced pursuant to Section 2.05 or increased
pursuant to Section 2.21.
“Canadian Revolving Credit Exposure” means, with respect to any Lender at any
time, such Lender’s Ratable Share of the Canadian Revolving Credit Facility Usage at such
time.
“Canadian Revolving Credit Facility” means, at any time, the aggregate amount
of the Lenders’ Canadian Revolving Credit Commitments at such time.
“Canadian Revolving Credit Facility Usage” means, at any time, the aggregate
outstanding principal amount of all Canadian Advances made by the Lenders.
“Canadian Secured Agreements” means any Secured Agreement that is entered into
by and between any Canadian Loan Party or any of its Subsidiaries and any Lender (or
Affiliate thereof).
“Canadian Secured Obligations” means the “Secured Obligations”, as defined in
the Canadian Security Agreement.
“Canadian Secured Parties” means, collectively, the Agent, each Co-Collateral
Agent, each Canadian Lender and each Lender or Affiliate of a Lender in its capacity as a
counterparty to a Canadian Secured Agreement.
“Canadian Security Agreement” means the Canadian Security Agreement, dated as
of October 18, 2005, as amended and restated as of March 31, 2009 and on the date hereof,
and as may be further amended, amended and restated, supplemented or otherwise modified from
time to time.
“Canadian Subsidiary Guarantor” means the direct and indirect wholly-owned
(other than directors’ qualifying shares or similar holdings under applicable law)
Subsidiaries of Kodak Canada organized under the laws of Canada or a province or territory
thereof as listed on Part B of Schedule II hereto and each other Subsidiary of Kodak Canada
that shall be required to execute and deliver a guaranty pursuant to Section 5.01(i).
11
“Canadian Unused Revolving Credit Commitment” means, with respect to each
Lender at any time, (a) such Lender’s Canadian Revolving Credit Commitment at such time
minus (b) the aggregate principal amount of all Canadian Advances made by such
Lender (in its capacity as a Lender) and outstanding at such time.
“Cash Collateralize” means, in respect of an obligation, provide and pledge (as
a first priority perfected security interest) cash collateral in Dollars, at a location and
pursuant to documentation in form and substance reasonably satisfactory to the Agent (and
“Cash Collateralization” has a corresponding meaning).
“Cash Control Trigger Event” means either (a) the occurrence and continuance of
a Default or (b) the failure of the Borrowers to maintain Excess Availability of at least
the greater of (x) 15% of the sum of the Canadian Revolving Credit Facility plus the US
Revolving Credit Facility and (y) $50,000,000, in each case for three (3) consecutive
Business Days. For purposes of this Agreement, the occurrence of a Cash Control Trigger
Event shall be deemed to be continuing (a) until such Default has been cured or waived
and/or (b) if the Cash Control Trigger Event arises under clause (b) above, until Excess
Availability is equal to or greater than the greater of (x) 15% of the sum of the Canadian
Revolving Credit Facility plus the US Revolving Credit Facility and (y) $50,000,000, in each
case for thirty (30) consecutive days, at which time a Cash Control Trigger Event shall no
longer be deemed to be occurring for purposes of this Agreement.
“Cash Equivalents” means any of the following, to the extent owned by any Loan
Party free and clear of all Liens other than Liens created under the Collateral Documents
and having a maturity of not greater than 12 months from the date of issuance thereof: (a)
readily marketable direct obligations of the Government of the United States or any agency
or instrumentality thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) certificates of deposit of or time
deposits with any commercial bank that is a Lender or a member of the Federal Reserve System
that issues (or the parent of which issues) commercial paper rated as described in clause
(c), is organized under the laws of the United States or any state thereof and has combined
capital and surplus of at least $500,000,000, (c) commercial paper in an aggregate amount of
no more than $10,000,000 per issuer outstanding at any time, issued by any corporation
organized under the laws of any state of the United States and rated at least “Prime 1” (or
the then equivalent grade) by Xxxxx’x or “A 1” (or the then equivalent grade) by S&P or (d)
Investments, classified in accordance with GAAP, as current assets of the Company or any of
its Subsidiaries, in money market investment funds having the highest rating obtainable from
either Xxxxx’x or S&P, (e) offshore overnight interest bearing deposits in foreign branches
of the Agent, any Lender or an Affiliate of a Lender, or (f) solely with respect to any
Subsidiaries of the Company not domiciled in the United States, substantially similar
investments as described in clauses (a) through (e) above (including as to credit quality
and maturity), denominated in the currency of any jurisdiction in which any such Subsidiary
conducts business.
“CFC” means an entity that is a “controlled foreign corporation” of the Company
under Section 957 of the Code or an entity all or substantially all of the assets of which
are CFCs, and any entity which would be a “controlled foreign corporation” except for any
alternate classification under Treasury Regulation 301.7701-3, or any successor provisions
to the foregoing.
“Co-Collateral Agents” means Bank of America and Citicorp USA Inc., in their
respective capacities as co-collateral agents for the Lenders.
“Code” means the United States Internal Revenue Code of 1986, as amended from
time to time, and the regulations promulgated thereunder.
“Collateral” means all “Collateral” referred to in the Collateral Documents and
all other property that is or is intended to be subject to any Lien in favor of the Agent
for the benefit of the Secured Parties pursuant to the terms of the Collateral Documents.
12
“Collateral Documents” means the US Security Agreement, the Canadian Security
Agreement and each of the collateral documents, instruments and agreements delivered
pursuant to Section 5.01(i) or (j).
“Commitment” means a Letter of Credit Commitment and/or a Revolving Credit
Commitment, as the context may require.
“Comprehensive Guaranteed Obligations” has the meaning specified in Section
7.01(a)(i).
“Concentration Account” means each deposit account, other than an Excluded
Account, maintained by a Loan Party in which funds of such Loan Party from one or more
Deposit Accounts are concentrated.
“Consolidated” refers to the consolidation of accounts in accordance with GAAP.
“Consolidated Subsidiary” means any Person whose accounts are consolidated with
the accounts of the Company in accordance with GAAP.
“Convert”, “Conversion” and “Converted” each refers to a
conversion of Advances of one Type into Advances of the other Type pursuant to Section 2.08
or 2.09.
“Debt” of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money (including, without limitation, pursuant to securitization
transactions), (b) to the extent such obligations would appear as a liability of such Person
in accordance with GAAP, all obligations of such Person for the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course of such
Person’s business), (c) all obligations of such Person evidenced by notes, bonds, debentures
or other similar instruments, (d) all obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to property acquired by
such Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such property), (e)
all obligations of such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) the face or maximum amount of all
obligations of such Person which have been or may be drawn upon under acceptances, letters
of credit or similar extensions of credit, (g) all Hedge Agreement Obligations of such
Person, (h) all payment obligations of other Persons whose financial statements are not
Consolidated with those of such Person (collectively, “Guaranteed Debt”) guaranteed
directly or indirectly in any manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (1) to pay or purchase such Guaranteed Debt
or to advance or supply funds for the payment or purchase of such Guaranteed Debt, (2) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell services,
expressly for the purpose of enabling the debtor to make payment of such Guaranteed Debt or
to assure the holder of such Guaranteed Debt against loss, (3) to supply funds to or in any
other manner invest in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are rendered) or (4)
otherwise to assure a creditor of such other Person against loss, and (i) all Debt of the
type referred to in clauses (a) through (h) above secured by (or for which the holder of
such Debt has an existing right to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though such Person has
not assumed or become liable for the payment of such Debt.
“Debt for Borrowed Money” of any Person means all items that, in accordance
with GAAP, would be classified as short term borrowings and long term debt on a Consolidated
statement of financial position of such Person.
“Default” means any Event of Default or any event that would constitute an
Event of Default but for the requirement that notice be given or time elapse or both.
“Default Interest” has the meaning specified in Section 2.07(b).
13
“Defaulted Advance” means, with respect to any Lender at any time, the portion
of any Advance required to be made by such Lender to a Borrower pursuant to Section 2.01 or
2.02 at or prior to such time which has not been made by such Lender or by the Agent for the
account of such Lender pursuant to Section 2.02(d) as of such time. In the event that a
portion of a Defaulted Advance shall be deemed made pursuant to Section 2.19(a), the
remaining portion of such Defaulted Advance shall be considered a Defaulted Advance
originally required to be made pursuant to Section 2.01 on the same date as the Defaulted
Advance so deemed made in part.
“Defaulted Amount” means, with respect to any Lender at any time, any amount
required to be paid by such Lender to the Agent or any other Lender hereunder or under any
other Loan Document at or prior to such time which has not been so paid as of such time,
including, without limitation, any amount required to be paid by such Lender to (a) any
Issuing Bank pursuant to Section 2.03(b) to purchase a participation in a Letter of Credit,
(b) the Agent pursuant to Section 2.02(d) to reimburse the Agent for the amount of any
Advance made by the Agent for the account of such Lender, (c) any other Lender pursuant to
Section 2.15 to purchase any participation in Advances owing to such other Lender and (d)
the Agent or any Issuing Bank pursuant to Section 8.05 to reimburse the Agent or such
Issuing Bank for such Lender’s ratable share of any amount required to be paid by the
Lenders to the Agent or such Issuing Bank as provided therein. In the event that a portion
of a Defaulted Amount shall be deemed paid pursuant to Section 2.19(b), the remaining
portion of such Defaulted Amount shall be considered a Defaulted Amount originally required
to be paid hereunder or under any other Loan Document on the same date as the Defaulted
Amount so deemed paid in part.
“
Defaulting Lender” means, at any time, a Lender as to which the Agent has
notified the Company that (i) such Lender has failed for three or more Business Days to
comply with its obligations under this Agreement to make an Advance or make a payment to an
Issuing Bank in respect of an Issuance (each a “
funding obligation”), (ii) such
Lender has notified the Agent, or has stated publicly, that it will not comply with any such
funding obligation hereunder, or has defaulted on its funding obligations under any other
loan agreement or
credit agreement or other similar financing agreement, (iii) such Lender
has, for three or more Business Days, failed to confirm in writing to the Agent, in response
to a written request of the Agent, that it will comply with its funding obligations
hereunder, or (iv) a Lender Insolvency Event has occurred and is continuing with respect to
such Lender. Any determination that a Lender is a Defaulting Lender under clauses (i)
through (iv) above will be made by the Agent in its sole discretion acting in good faith.
The Agent will promptly send to all parties hereto a copy of any notice to the Company
provided for in this definition.
“Deposit Accounts” means any checking or other demand deposit account
maintained by a Loan Party.
“Designated Amount” has the meaning specified in Section 8.13.
“Dilution” means, as of any date, a percentage, based upon the experience of
the twelve-month period ending as of the last day of the immediately preceding fiscal month,
which is the result of dividing the Dollar amount of (i) bad debt write-downs, discounts,
advertising allowances, profit sharing deductions or other non-cash credits with respect to
a Loan Party’s Accounts during such period determined consistently with the applicable Loan
Party’s accounting practices, by (ii) such Loan Party’s gross sales with respect to Accounts
for such Loan Party during such period.
“Dilution Reserve” means, as of any date, an amount sufficient to reduce the
advance rate against Eligible Receivables by one percentage point for each percentage point
by which Dilution is in excess of 5.0%.
“Dollar” or “$” means the lawful currency of the United States.
“Dollar Equivalent” means at any time, (i) with respect to any amount
denominated in Dollars, such amount, and (ii) with respect to any amount denominated in any
other currency, the amount of Dollars that the Agent determines (which determination shall
be conclusive and binding absent manifest error)
14
would be necessary to be sold on such date at the applicable Exchange Rate to obtain
the stated amount of the other currency.
“Domestic Lending Office” means, as to any Lender, the office or offices of
such Lender described as such in such Lender’s Administrative Questionnaire, or such other
office or offices as a Lender may from time to time notify the Borrowers and the Agent.
“EBITDA” means, for any period, net earnings (or net loss) plus,
without duplication and to the extent reflected as a charge in the Consolidated statement of
earnings, the sum of (a) interest expense, (b) income tax expense (benefit), (c)
depreciation expense, (d) amortization expense, (e) any extraordinary expenses or losses,
(f) any other non-cash charges that will not at any time result in any cash payment, and (g)
corporate restructuring charges in an amount not to exceed: $150,000,000 for the 2011
fiscal year, $75,000,000 for the 2012 fiscal year, and $25,000,000 for each of the 2013,
2014 and 2015 fiscal years, minus, to the extent included in net earnings on the
Consolidated statement of earnings, (i) interest income, (ii) any extraordinary income or
gains and (iii) any other non-cash income that will not at any time result in any cash
payment, in each case determined in accordance with GAAP for such period.
“Effective Date” means the first date on which all of the conditions precedent
in Article III are satisfied or waived in accordance with Article III.
“Eligible Assignee” means with respect to the Revolving Credit Facility (i) a
Lender; (ii) an Affiliate or branch of a Lender; and (iii) any other Person approved by (x)
the Agent, (y) each Issuing Bank and (z) unless an Event of Default has occurred and is
continuing at the time any assignment is effected in accordance with Section 9.08, the
Company, in each case, such approval not to be unreasonably withheld or delayed (it being
understood that a proposed assignee’s status as other than a financial institution shall be
a reasonable basis for the Company to withhold its consent), provided that the Company shall
be deemed to have consented to such Person if the Company has not responded within five
business days of a request for such approval; provided, however, that
neither any Loan Party nor an Affiliate of a Loan Party shall qualify as an Eligible
Assignee, and provided further that if such Person is to hold any Canadian Revolving Credit
Commitments, such Person is at all times other than during any Event of Default, a Canadian
Qualified Lender.
“Eligible Equipment” means Equipment of the Company and its Subsidiaries
subject to the Lien of the Collateral Documents, the value of which shall be determined
based upon its Net Orderly Liquidation Value. Criteria and eligibility standards used in
determining Eligible Equipment may be fixed and revised from time to time by the Agent in
its reasonable discretion. Unless otherwise from time to time approved in writing by the
Agent, no Equipment shall be deemed Eligible Equipment if, without duplication:
(a) any such Equipment is located on leaseholds and is subject to landlord Liens or
other Liens arising by operation of law, unless one of the following applies: (i) the lessor
has entered into a Landlord Lien Waiver or (ii) a Rent Reserve has been taken with respect
to such Equipment or, in the case of any third party premises, a Reserve has been taken by
the Agent in the exercise of its reasonable discretion; or
(b) such Equipment is Equipment for which appraisals have not been completed by the
Agent or a qualified independent appraiser reasonably acceptable to the Agent utilizing
procedures and criteria reasonably acceptable to the Agent for determining the value of such
Equipment; or
(c) such Equipment is Equipment in respect of which the Collateral Documents, after
giving effect to the related filings of financing statements that have then been made, if
any, do not or have ceased to create a valid and perfected first priority Lien or security
interest in favor of the Agent, on behalf of the Secured Parties, securing the Secured
Obligations; or
(d) a Loan Party does not have good, valid and unencumbered title thereto, subject only
to Liens permitted under clause (a) or (b) of the definition of Permitted Liens, liens
permitted under clause
15
(ix) of Section 5.02(a) or Liens granted pursuant to any of the Loan Documents
(“Permitted Collateral Liens”); or
(e) Equipment that is subject to a voluntary or mandatory recall or is otherwise
subject to any similar action that renders it unsaleable.
“Eligible Inventory” means, at the time of any determination thereof, without
duplication, the Inventory Value of the Loan Parties at such time that is not ineligible for
inclusion in the calculation of the Borrowing Base pursuant to any of clauses (a) through
(m) below. Criteria and eligibility standards used in determining Eligible Inventory may be
fixed and revised from time to time by the Agent in its reasonable discretion (including,
without limitation, criteria and eligibility standards to account for dispositions of
Intellectual Property Collateral (as defined in the Security Agreements) that is material to
the value or saleability of any Inventory). Unless otherwise from time to time approved in
writing by the Agent, no Inventory shall be deemed Eligible Inventory if, without
duplication:
(a) a Loan Party does not have good, valid and unencumbered title thereto, subject only
to Permitted Collateral Liens; or
(b) it is not located in the United States (in the case of the Company and the US
Subsidiary Guarantors) or Canada (in the case of Kodak Canada and the Canadian Subsidiary
Guarantors); provided that in the case of Inventory located in Canada, the Company shall
provide evidence reasonably satisfactory to the Agent that there is an enforceable,
perfected first priority security interest in such Inventory in favor of the Agent under the
laws of the applicable foreign jurisdiction; or
(c) it is either (i) a service part in the possession of or held by field engineers or
(ii) located at third party premises or (except in the case of consigned Inventory, which is
covered by clause (f) below) in another location not owned by a Loan Party, and is subject
to landlord or warehousemen Liens or other Liens arising by operation of law, unless one of
the following applies: (A) the premises is covered by a Landlord Lien Waiver or (B) a Rent
Reserve has been taken with respect to such Inventory or, in the case of any third party
premises, a Reserve has been taken by the Agent in the exercise of its reasonable
discretion; or
(d) it is operating supplies, labels, packaging or shipping materials, cartons, repair
parts, labels, miscellaneous spare parts and other such materials not held for sale, in each
case to the extent not considered used for sale in the ordinary course of business of the
Loan Parties by the Agent in its reasonable discretion from time to time; or
(e) it is not subject to a valid and perfected first priority Lien in favor of the
Agent; or
(f) it is consigned at a customer, supplier or contractor location but still accounted
for in the Loan Party’s inventory balance, unless (i) if such Inventory is subject to
landlord or consignee Liens or other Liens arising by operation of law, then such location
is the subject of a Landlord Lien Waiver, (ii) the Agent is reasonably satisfied with the
controls and reporting applicable to such Inventory and (iii) the aggregate amount of such
Inventory does not exceed $100,000 at any location at any time; or
(g) it is Inventory that is in-transit to or from a location not leased or owned by a
Loan Party other than any such in-transit Inventory to a Loan Party or between Loan Parties,
that is physically in-transit within the United States (in the case of the Company and the
US Subsidiary Guarantors) or Canada (in the case of Kodak Canada and the Canadian Subsidiary
Guarantors) and as to which a Reserve has been taken by the Agent if required in the
exercise of its reasonable discretion; or
(h) it is obsolete, slow-moving, nonconforming or unmerchantable or is identified as a
write-off, overstock or excess by a Loan Party (as determined in accordance with the
Company’s policies which shall be substantially consistent those in effect on the Effective
Date), or does not otherwise conform to the representations and warranties contained in this
Agreement and the other Loan Documents applicable to Inventory; or
16
(i) it is Inventory used as a sample or prototype, display or display item; or
(j) any Inventory that is damaged, defective or marked for return to vendor, has been
deemed by a Loan Party to require rework or is being held for quality control purposes; or
(k) such Inventory does not meet all material applicable standards imposed by any
governmental authority having regulatory authority over it; or
(l) any Inventory for which field audits and appraisals have not been completed by the
Agent or a qualified independent appraiser reasonably acceptable to the Agent utilizing
procedures and criteria acceptable to the Agent for determining the value of such Inventory;
or
(m) Inventory that is subject to a voluntary or mandatory recall or is otherwise
subject to any similar action that renders it unsaleable.
“Eligible Receivables” means, at the time of any determination thereof, each
Account of each Loan Party that satisfies the following criteria: such Account (i) has been
invoiced to, and represents the bona fide amounts due to a Loan Party from, the purchaser of
goods or services, in each case originated in the ordinary course of business of such Loan
Party, and (ii) is not ineligible for inclusion in the calculation of the Borrowing Base
pursuant to any of clauses (a) through (r) below. In determining the amount to be so
included, the face amount of an Account shall be reduced by, without duplication and to the
extent not included in Reserves, to the extent not reflected in such face amount; (A) the
amount of all accrued and actual discounts, claims, credits or credits pending, promotional
program allowances, price adjustments, finance charges or other allowances (including any
amount that a Loan Party may be obligated to rebate to a customer pursuant to the terms of
any written agreement or understanding), (B) the aggregate amount of all limits and
deductions provided for in this definition and elsewhere in this Agreement, if any, and (C)
the aggregate amount of all cash received in respect of such Account but not yet applied by
a Loan Party to reduce the amount of such Account. Criteria and eligibility standards used
in determining Eligible Receivables may be fixed and revised from time to time by the Agent
in its reasonable discretion. Unless otherwise approved from time to time in writing by the
Agent, no Account shall be an Eligible Receivable if, without duplication:
(a) (i) a Loan Party does not have sole lawful and absolute and unencumbered title to
such Account subject only to Permitted Collateral Liens, or (ii) the goods sold with respect
to such Account have been sold under a purchase order or pursuant to the terms of a contract
or other written agreement or understanding that indicates that any Person other than a Loan
Party has or has purported to have an ownership interest in such goods; or
(b) (i) it is unpaid for more than 60 days from the original due date or (ii) it arises
as a result of a sale with original payment terms in excess of 90 days; or
(c) more than 50% in face amount of all Accounts of the same Account Debtor are
ineligible pursuant to clause (b) above; or
(d) the Account Debtor is insolvent or the subject of any bankruptcy or insolvency case
or proceeding of any kind (other than postpetition accounts payable of an Account Debtor
that is a debtor-in-possession under the Bankruptcy Law and reasonably acceptable to the
Agent); or
(e) (i) the Account is not payable in Dollars or Canadian Dollars or other currency as
to which a Reserve has been taken by the Agent in the exercise of its reasonable discretion
or (ii) the Account Debtor is either not organized under the laws of the United States of
America, any state thereof, or the District of Columbia, or Canada or any province or
territory thereof or is located outside or has its principal place of business or
substantially all of its assets outside the United States or Canada, unless such Account is
supported by a letter of credit from an institution and in form and substance satisfactory
to the Agent in its sole discretion; or
17
(f) the Account Debtor is (i) the United States of America or (ii) the government of
Canada or any province or territory thereof, or in each case any department, agency or
instrumentality thereof, unless the relevant Loan Party duly assigns its rights to payment
of such Account to the Agent pursuant to the Assignment of Claims Act of 1940, the Financial
Administration Act (Canada) or similar applicable law, each as amended, which assignment and
related documents and filings shall be in form and substance reasonably satisfactory to the
Agent; or
(g) to the extent of any security deposit, progress payment, retainage or other similar
advance made by or for the benefit of the applicable Account Debtor, that portion of the
Account as to which the applicable Loan Party has received any security deposit (to the
extent received from the applicable Account Debtor), progress payment, retainage or other
similar advance made by or for the benefit of the applicable Account Debtor; or
(h) (i) it is not subject to a valid and perfected first priority Lien in favor of the
Agent or (ii) it does not otherwise conform in all material respects to the representations
and warranties contained in this Agreement and the other Loan Documents relating to
Accounts; or
(i) (i) such Account was invoiced in advance of goods being shipped or services being
provided, (ii) such Account was invoiced twice or more, or (iii) the associated revenue has
not been earned; or
(j) the sale to the Account Debtor is on a xxxx-and-hold, guaranteed sale,
sale-and-return, ship-and-return, sale on approval or consignment or other similar basis or
made pursuant to any other agreement providing for repurchases or return of any merchandise
which has been claimed to be defective or otherwise unsatisfactory, which shall not include
customary product warranties; or
(k) the goods giving rise to such Account have not been shipped and/or title has not
been transferred to the Account Debtor, or the Account represents a progress-billing or
otherwise does not represent a complete sale; for purposes hereof, “progress-billing” means
any invoice for goods sold or leased or services rendered under a contract or agreement
pursuant to which the Account Debtor’s obligation to pay such invoice is conditioned upon
the completion by a Loan Party of any further performance under the contract or agreement;
or
(l) it arises out of a sale made by a Loan Party to an employee, officer, agent,
director, Subsidiary or Affiliate of a Loan Party; or
(m) such Account was not paid in full, and a Loan Party created a new receivable for
the unpaid portion of the Account without the agreement of the Account Debtor, and other
Accounts constituting chargebacks, debit memos and other adjustments for unauthorized
deductions or put back on the aging until resolved by the credit department of the Company;
or
(n) (A) the Account Debtor (i) has or has asserted a right of set-off, offset,
deduction, defense, dispute, or counterclaim against a Loan Party (unless such Account
Debtor has entered into a written agreement reasonably satisfactory to the Agent to waive
such set-off, offset, deduction, defense, dispute, or counterclaim rights), (ii) has
disputed its liability (whether by chargeback or otherwise) or made any claim with respect
to the Account or any other Account of a Loan Party which has not been resolved, in each
case of clause (i) and (ii), without duplication, only to the extent of the amount of such
actual or asserted right of set-off, or the amount of such dispute or claim, as the case may
be or (iii) is also a creditor or supplier of the Loan Party (but only to the extent of such
Loan Party’s obligations to such Account Debtor from time to time) or (B) the Account is
contingent in any respect or for any reason; or
(o) the Account does not comply in all material respects with the requirements of all
applicable laws and regulations, whether federal, state, provincial, municipal, local or
foreign including without limitation, the Federal Consumer Credit Protection Act, Federal
Truth in Lending Act and Regulation Z; or
18
(p) as to any Account, to the extent that (i) a check, promissory note, draft, trade
acceptance or other instrument for the payment of money has been received, presented for
payment and returned uncollected for any reason or (ii) such Account is otherwise classified
as a note receivable and the obligation with respect thereto is evidenced by a promissory
note or other debt instrument or agreement; or
(q) the Account is created in cash on delivery terms; or
(r) the amount of any net credit balances relating to such Account is unused by the
Account Debtor within 60 days from the date the net credit balance was created.
Notwithstanding the foregoing, all Accounts of any single Account Debtor and its Affiliates
which, in the aggregate, exceed (i) in respect of any Account Debtor whose Public Debt
Rating is not less than BBB- by S&P and Baa3 by Moody’s, 20% of all Eligible Receivables and
(ii) in respect of any other Account Debtor, 10% of all Eligible Receivables, shall not be
Eligible Receivables.
“Emerging Markets” means Asia, Central and Eastern Europe and Latin America.
“Emerging Market Subsidiaries” means Subsidiaries of the Company organized and
doing business in any country of Asia, Central and Eastern Europe or Latin America.
“Environmental Action” means any action, suit, demand, demand letter, claim,
notice of non-compliance or violation, notice of liability or potential liability,
investigation, proceeding, consent order or consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for enforcement, cleanup,
removal, response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution, indemnification, cost
recovery, compensation or injunctive relief.
“Environmental Law” means any federal, state, provincial, municipal, local or
foreign statute, law, ordinance, rule, regulation, code, order, judgment, decree or judicial
or agency interpretation, policy or guidance relating to pollution or protection of the
environment, health, safety or natural resources, including, without limitation, those
relating to the use, handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
“Environmental Permit” means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
“Equipment” has the meaning specified in the UCC.
“ERISA” means the United States Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
“ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a
member of the controlled group of any Loan Party, or under common control with any Loan
Party, within the meaning of Section 414 of the Code.
“ERISA Event” means (a)(i) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by the PBGC or (ii) the requirements
of Section 4043(b) of ERISA apply with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9), (10),
(11), (12) or (13) of Section 4043(c) of ERISA is reasonably expected to occur with respect
to such Plan within the following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such
notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the
cessation of operations at a facility of any Loan Party or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the
19
withdrawal by any Loan Party or any ERISA Affiliate from a Multiple Employer Plan
during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2)
of ERISA; (f) the conditions for imposition of a lien under Section 303(k) of ERISA shall
have been met with respect to any Plan; (g) a determination that any Plan is in “at risk”
status (within the meaning of Section 303 of ERISA); or (h) the institution by the PBGC of
proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that constitutes grounds for the
termination of, or the appointment of a trustee to administer, such Plan.
“Eurocurrency Liabilities” has the meaning assigned to that term in Regulation
D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“Eurodollar Lending Office” means, as to any Lender, the office or offices of
such Lender described as such in such Lender’s Administrative Questionnaire, or such other
office or offices as a Lender may from time to time notify the Borrowers and the Agent.
“Eurodollar Rate” means for any Interest Period with respect to a Eurodollar
Rate Advance, a rate per annum determined by the Agent pursuant to the following formula:
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Eurodollar Rate =
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Eurodollar Base Rate
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1.00 – Eurodollar Reserve Percentage |
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“Eurodollar Base Rate” means, for such Interest Period, the rate per annum
equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by
Reuters (or other commercially available source providing quotations of BBA LIBOR as
designated by the Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for Dollar deposits (for
delivery on the first day of such Interest Period) with a term equivalent to such Interest
Period. If such rate is not available at such time for any reason, then the “Eurodollar
Base Rate” for such Interest Period shall be the rate per annum determined by the Agent to
be the rate at which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Eurodollar Rate Advance being
made, continued or converted by the Agent and with a term equivalent to such Interest Period
would be offered by the Agent’s London Branch to major banks in the London interbank
eurodollar market at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period.
“Eurodollar Rate Advance” means an Advance that bears interest as provided in
Section 2.07(a)(ii).
“Eurodollar Reserve Percentage” means, for any day during any Interest Period,
the reserve percentage (expressed as a decimal, carried out to five decimal places) in
effect on such day, whether or not applicable to any Lender, under regulations issued from
time to time by the FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency
funding (currently referred to as “Eurocurrency liabilities”). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
“Events of Default” has the meaning specified in Section 6.01.
“Excess Availability” means the sum of the Canadian Excess Availability and the
US Excess Availability.
“Exchange Rate” means on any date, (i) with respect to Canadian Dollars in
relation to Dollars, the spot rate as quoted by the Agent at its noon spot rate at which
Dollars are offered on such date for Canadian Dollars, and (ii) with respect to Dollars in
relation to Canadian Dollars, the spot rate as quoted by the Agent at its noon spot rate at
which Canadian Dollars are offered on such date for such Dollars.
20
“Excluded Account” means (i) any deposit or concentration accounts funded in
the ordinary course of business, the deposits in which shall not aggregate more than
$5,000,000 or exceed $1,000,000 with respect to any one account (or in each case, such
greater amounts to which the Agent may reasonably agree), (ii) any payroll, trust and tax
withholding accounts funded in the ordinary course of business or required by applicable law
or (iii) so long as the aggregate amounts on deposit in all such accounts does not exceed
$10,000,000 at any time, any deposit account reasonably required for servicing the
Borrowers’ Event Imaging Services business.
“
Existing Agent” means Citicorp USA, Inc., as agent pursuant to the Existing
Credit Agreement.
“
Existing Credit Agreement” means the Amended and Restated
Credit Agreement,
dated as of March 31, 2009 (as amended by Amendment No. 1 thereto, dated as of September 17,
2009 and Amendment No. 2 thereto, dated as of February 10. 2010), among the Borrowers, the
lenders party thereto and Citicorp USA, Inc., as agent.
“Existing Debt” has the meaning set forth in Section 5.02(d)(ii).
“Facility” means, the Revolving Credit Facility and the Letter of Credit
Facility.
“FATCA” means Sections 1471-1474 of the Code in effect as of the date hereof
and Treasury regulations issued thereunder.
“
Federal Funds Rate” means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of
New York on the Business Day next succeeding such day; provided that
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next succeeding
Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to the Agent on such day on such
transactions as determined by the Agent.
“Fixed Charge Coverage Ratio” means, as determined on the last day of any
fiscal quarter, the ratio of (i) Consolidated EBITDA for the most recently completed period
of four consecutive fiscal quarters ending on such date minus the aggregate amount of any
unfinanced capital expenditures paid during such period minus taxes paid in cash by the
Company and its Subsidiaries (net of refunds received) during such period to (ii) interest
payable on, and amortization of debt discount in respect of, all Debt for Borrowed Money
during such period plus the aggregate amount of all scheduled principal payments plus the
aggregate amount of all cash dividend payments to holders of the capital stock of the
Company, in each case, of the Company and its Consolidated Subsidiaries on a Consolidated
basis.
“Fixed Charge Coverage Ratio Trigger Event” means the failure of the Borrowers
to maintain Excess Availability at any time of at least the greater of (a) $40,000,000 and
(b) 12.5% of the sum of the Canadian Revolving Credit Facility and the US Revolving Credit
Facility; provided that the occurrence of a Fixed Charge Coverage Ratio Trigger Event shall
be deemed continuing until Excess Availability shall have been at least equal to the greater
of (i) $40,000,000 and (ii) 12.5% of the sum of the Canadian Revolving Credit Facility and
the US Revolving Credit Facility for thirty (30) consecutive calendar days, at which time
such Fixed Charge Coverage Ratio Trigger Event shall no longer be deemed continuing.
“FRB” means the Board of Governors of the Federal Reserve System of the United
States.
“Fund” means any Person (other than an individual) that is or will be engaged
in making, purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course.
21
“GAAP” has the meaning specified in Section 1.03.
“Guaranteed Obligations” means the Comprehensive Guaranteed Obligations and/or
the Canadian Guaranteed Obligations, as the context may require.
“Guarantors” means the Company, the US Subsidiary Guarantors and the Canadian
Subsidiary Guarantors.
“Guaranty” means the guaranty of each Guarantor set forth in Article VII.
“Guaranty Supplement” has the meaning specified in Section 7.05.
“Hazardous Materials” means (a) petroleum and petroleum products, byproducts or
breakdown products, radioactive materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
“Hedge Agreement Obligations” means the aggregate net liabilities, on a
xxxx-to-market basis as determined in accordance with GAAP, for all Hedge Agreements of a
Person calculated as of the end of the most recent month.
“Hedge Agreements” means interest rate, currency or commodity swap, cap or
collar agreements, interest rate, currency or commodity future or option contracts and other
similar agreements.
“
Indenture” means the Indenture dated as of January 1, 1988 between the Company
and The Bank of
New York, as trustee, as amended from time to time.
“Initial Issuing Banks” means each Lender (or an Affiliate thereof) with a
Letter of Credit Commitment on the Effective Date.
“Insufficiency” means, with respect to any Plan, the amount, if any, of its
unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
“Intellectual Property” has the meaning specified in Section 4.01(i).
“
Intercreditor Agreement” means (a) the Intercreditor Agreement, dated as of
March 5, 2010, among Citicorp USA, Inc. as First Lien Representative, The Bank of
New York
Mellon, as Second Lien Representative, the Company and Guarantors and (b) each other
intercreditor agreement executed and delivered by the Agent in connection with the
incurrence by the Company of Debt secured by second priority Liens in the Collateral
permitted under Section 5.02(a)(ix); as such agreements may be amended, restated,
supplemented or otherwise modified from time to time.
“
Interest Period” means, for each Eurodollar Rate Advance comprising part of
the same Borrowing, the period commencing on the date of such Eurodollar Rate Advance or the
date of the Conversion of any Base Rate Advance into such Eurodollar Rate Advance and ending
on the last day of the period selected by the applicable Borrower pursuant to the provisions
below and, thereafter, each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected by such Borrower
pursuant to the provisions below. The duration of each such Interest Period shall be one,
two, three or six months, and subject to clause (c) of this definition, nine or twelve
months, as the applicable Borrower may, upon notice received by the Agent not later than
11:00 A.M. (
New York City time) on the third Business Day prior to the first day of such
Interest Period, select;
provided,
however, that:
(a) no Borrower may select any Interest Period that ends after the Termination Date;
22
(b) Interest Periods commencing on the same date for Eurodollar Rate Advances
comprising part of the same Borrowing shall be of the same duration;
(c) no Borrower shall be entitled to select an Interest Period having duration of nine
or twelve months unless, by 2:00 P.M. (
New York City time) on the third Business Day prior
to the first day of such Interest Period, each Lender notifies the Agent that such Lender
will be providing funding for such Borrowing with such Interest Period (the failure of any
Lender to so respond by such time being deemed for all purposes of this Agreement as an
objection by such Lender to the requested duration of such Interest Period);
provided that, if any or all of the Lenders object to the requested duration of such
Interest Period, the duration of the Interest Period for such Borrowing shall be one, two,
three or six months, as specified by such Borrower in the applicable Notice of Borrowing as
the desired alternative to an Interest Period of nine or twelve months;
(d) whenever the last day of any Interest Period would otherwise occur on a day other
than a Business Day, the last day of such Interest Period shall be extended to occur on the
next succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next preceding Business Day;
and
(e) whenever the first day of any Interest Period occurs on a day of an initial
calendar month for which there is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of months equal to the number of
months in such Interest Period, such Interest Period shall end on the last Business Day of
such succeeding calendar month.
“Inventory” has the meaning specified in the UCC.
“Inventory Value” means with respect to any Inventory of a Loan Party at the
time of any determination thereof, the standard cost determined on a first in first out
basis and carried on the general ledger or inventory system of such Loan Party stated on a
basis consistent with its current and historical accounting practices, in Dollars,
determined in accordance with the standard cost method of accounting less, without
duplication, (i) any markup on Inventory from an Affiliate and (ii) in the event variances
under the standard cost method are expensed, a Reserve reasonably determined by the Agent as
appropriate in order to adjust the standard cost of Eligible Inventory to approximate actual
cost.
“Investment” in any Person means any loan or advance to such Person, any
purchase or other acquisition of any equity interests or Debt or the assets comprising a
division or business unit or a substantial part or all of the business of such Person, any
capital contribution to such Person or any other direct or indirect investment in such
Person, including, without limitation, any acquisition by way of a merger or consolidation
(or similar transaction) and any arrangement pursuant to which the investor incurs Debt of
the types referred to in clause (h) or (i) of the definition of “Debt” in respect of
such Person.
“ISP” means, with respect to any Letter of Credit, the “International Standby
Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or
such later version thereof as may be in effect at the time of issuance).
“Issuance” with respect to any Letter of Credit means the issuance, amendment,
renewal or extension of such Letter of Credit.
“Issuing Bank” means an Initial Issuing Bank, any Eligible Assignee to which a
portion of the Letter of Credit Commitment hereunder has been assigned pursuant to Section
9.08 or any other Lender (or an Affiliate thereof) so long as such Eligible Assignee or
Lender (or Affiliate thereof) expressly agrees to perform in accordance with their terms all
of the obligations that by the terms of this Agreement are required to be performed by it as
an Issuing Bank and notifies the Agent of its Applicable Lending Office (which information
shall be recorded by the Agent in the Register), for so long as such Initial Issuing Bank,
Eligible Assignee or Lender (or Affiliate thereof), as the case may be, shall have a Letter
of Credit Commitment.
23
“Landlord Lien Waiver” means a written agreement that is reasonably acceptable
to the Agent, pursuant to which a Person shall waive or subordinate its rights (if any, that
are or would be prior to the Liens granted to the Agent for the benefit of the Lenders under
the Loan Documents) and claims as landlord, warehouseman or consignee, as applicable in any
Inventory or Equipment of a Loan Party for unpaid rents and other charges, grant access to
the Agent for the repossession and sale of such Inventory or Equipment and make other
customary agreements relative thereto.
“L/C Cash Deposit Account” means an interest bearing cash deposit account to be
established and maintained by the Agent, over which the Agent, as provided in Section 6.02,
shall have sole dominion and control, upon terms as may be satisfactory to the Agent.
“L/C Related Documents” has the meaning specified in Section 2.06(b)(i).
“Lender Insolvency Event” means that (i) a Lender or its Parent Company is
insolvent, or is generally unable to pay its debts as they become due, or admits in writing
its inability to pay its debts as they become due, or makes a general assignment for the
benefit of its creditors, or (ii) such Lender or its Parent Company is the subject of a
bankruptcy, insolvency, reorganization, liquidation, winding up or similar proceeding, or a
receiver, interim receiver, trustee, conservator, intervenor or sequestrator or the like has
been appointed for such Lender or its Parent Company, or such Lender or its Parent Company
has taken any action in furtherance of or indicating its consent to or acquiescence in any
such proceeding or appointment.
“Lenders” has the meaning in the introductory paragraph hereto, and shall
include each Assuming Lender that shall become a party hereto pursuant to Section 2.21, each
Issuing Bank and each Person that shall become a party hereto pursuant to Section 9.08.
“Letter of Credit” means a US Letter of Credit.
“Letter of Credit Commitment” means a US Letter of Credit Commitment.
“Letter of Credit Facility” means the US Letter of Credit Facility.
“Letter of Credit Obligations” means the US Letter of Credit Obligations.
“Lien” means any lien, security interest, hypothecation or other charge or
encumbrance of any kind on the property of a Person, including, without limitation, the lien
or retained security title of a conditional vendor and any easement, right of way or other
encumbrance on title to real property, provided the term “Lien” shall not include any
license of intellectual property.
“Line Cap” means the sum of the Canadian Line Cap and the US Line Cap.
“
Loan Documents” means (i) this Agreement, (ii) the Notes, (iii) Collateral
Documents, (iv) all Intercreditor Agreements and (v) each Letter of
Credit Agreement, in
each case as amended, restated, supplemented or otherwise modified from time to time.
“Loan Parties” means the Borrowers and the Guarantors.
“Loan Value” means the Canadian Loan Value and/or the US Loan Value, as the
context may require.
“Material Adverse Change” means any material adverse change in the business,
condition (financial or otherwise), operations, performance or properties of the Company and
its Consolidated Subsidiaries taken as a whole.
24
“Material Adverse Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), operations, performance or properties of the Company and
its Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the Agent or
any Lender under any Loan Document or (c) the ability of any Significant Loan Party to
perform its obligations under any Loan Document to which it is a party.
“Material Subsidiary” means (a) with respect to the Company, each direct
Subsidiary of the Company that, for the most recently completed fiscal year of the Company
for which audited financial statements are available, either (i) has, together with its
Subsidiaries, assets that exceed 5% of the total assets shown on the Consolidated statement
of financial condition of the Company as of the last day of such period or (ii) has,
together with its Subsidiaries, net sales that exceed 5% of the Consolidated net sales of
the Company for such period; and (b) with respect to Kodak Canada, means each direct
Subsidiary of Kodak Canada that, as of the end of the most recently completed fiscal year
for which audited financial statements of the Company are available, either (i) has,
together with its Subsidiaries, assets that exceed 5% of the total assets shown on
consolidating statements of Kodak Canada and its Subsidiaries used in preparation of the
Company’s Consolidated statement of financial condition as of the last day of such period or
(ii) has, together with its Subsidiaries, net sales that exceed 5% of the Consolidated net
sales of Kodak Canada and its subsidiaries for such period.
“Maximum Rate” has the meaning specified in the meaning 2.08(i).
“Moody’s” means Xxxxx’x Investors Service, Inc.
“Multiemployer Plan” means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which any Loan Party or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the preceding five plan years made or
accrued an obligation to make contributions, but excluding any Canadian Pension Plans.
“Multiple Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and at least one Person other than the Loan Parties and the ERISA Affiliates or
(b) was so maintained and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4064 or 4069 of ERISA in the event such plan has been or were
to be terminated.
“Net Cash Proceeds” means, with respect to any sale, lease, transfer or other
disposition by the Company or any of its Subsidiaries of any asset to a Person that is not a
Subsidiary of the Company, the aggregate amount of cash actually received from time to time
(whether as initial consideration or through payment or disposition of deferred
consideration, and if received in a currency other than Dollars, determined after the
conversion of such cash into Dollars using the prevailing exchange rate in effect on the
date such local currency cash is received) by or on behalf of such Person in connection with
such transaction after deducting therefrom only (without duplication) (a) reasonable and
customary brokerage commissions, underwriting fees and discounts, legal and accounting fees,
filing fees, finder’s fees and other similar fees and commissions and other expenses of the
transaction, (b) the amount of taxes payable in connection with or as a result of such
transaction or (c) the amount of any Debt secured by a Lien on such asset that, by the terms
of the agreement or instrument governing such Debt, is required to be repaid upon such
disposition, in each case to the extent, but only to the extent, that the amounts so
deducted are, at the time of receipt of such cash (or, in the case of taxes, within 12
months of the time of receipt of such cash), actually paid to a Person that is not an
Affiliate of the Company and are properly attributable to such transaction or to the asset
that is the subject thereof, provided, however, that Net Cash Proceeds shall
not include any license by the Company or its Subsidiaries of its Intellectual Property in
the ordinary course of business, any settlement by the Company or its Subsidiaries with
respect to claims relating to Intellectual Property rights or any proceeds from the sale or
transfer of the Intellectual Property listed on Part (i) of Schedule (IV) of the US Security
Agreement.
“Net Orderly Liquidation Value” means, with respect to Eligible Equipment and
Eligible Inventory, as the case may be, the orderly liquidation value with respect to such
Equipment or Inventory,
25
net of expenses estimated to be incurred in connection with such liquidation, based on
the most recent third party appraisal in form and substance, and by an independent appraisal
firm, reasonably satisfactory to the Agent.
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting
Lender or a Potential Defaulting Lender.
“Note” means a promissory note of the applicable Borrower payable to the order
of any Lender, delivered pursuant to a request made under Section 2.16 in substantially the
form of Exhibit A hereto, evidencing the aggregate indebtedness of the applicable
Borrower to such Lender resulting from the Advances made by such Lender.
“Notice of Borrowing” has the meaning specified in Section 2.02(a).
“Notice of Issuance” has the meaning specified in Section 2.03(a).
“Obligations” means the Canadian Obligations and/or the US Obligations, as the
context may require.
“Other Taxes” has the meaning specified in Section 2.14(b).
“Parent Company” means, with respect to a Lender, the bank holding company (as
defined in Federal Reserve Board Regulation Y), if any, of such Lender, and/or any Person
owning, beneficially or of record, directly or indirectly, a majority of the shares of such
Lender.
“PATRIOT Act” means the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56,
signed into law October 26, 2001.
“PBGC” means the Pension Benefit Guaranty Corporation (or any successor).
“Permitted Collateral Liens” has the meaning specified in the definition of
“Eligible Equipment”.
“Permitted Liens” means such of the following as to which no enforcement,
collection, execution, levy or foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to the extent not required to be
paid under the proviso of Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s Liens and other similar
Liens arising in the ordinary course of business; (c) pledges or deposits to secure
obligations under workers’ compensation laws or similar legislation or to secure public or
statutory obligations or to secure the performance of bids, performance bonds, tenders,
trade contracts or leases (other than leases constituting Debt) in the ordinary course of
business; (d) easements, rights of way and other encumbrances on title to real property that
do not render title to the property encumbered thereby unmarketable, were not incurred in
connection with and do not secure Debt and do not materially adversely affect the use of
such property for its present purposes; and (e) Liens or other conveyances of property in
favor of any governmental department, agency or instrumentality to secure partial, progress
or advance or other payments (other than in respect of borrowed money) pursuant to any
contract or statute.
“Permitted Refinancing” means, with respect to any Person, any modification,
refinancing, refunding, renewal, replacement, exchange or extension of any Debt of such
Person; provided that (a) the principal amount (or accreted value, if applicable)
thereof does not exceed the principal amount (or accreted value, if applicable) of the Debt
so modified, refinanced, refunded, renewed, replaced, exchanged or extended except by an
amount equal to accrued and unpaid interest and a reasonable premium thereon plus other
reasonable and customary amounts paid, and customary fees and expenses reasonably incurred,
in connection with such modification, refinancing, refunding, renewal, replacement, exchange
or extension and by an amount equal to any existing commitments unutilized thereunder; (b)
such modification,
26
refinancing, refunding, renewal, replacement, exchange or extension (i) has a final
maturity date equal to or later than the final maturity date of, and has a Weighted Average
Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Debt
being modified, refinanced, refunded, renewed, replaced, exchanged or extended and (ii) has
no scheduled amortization or payments of principal prior to 181 days after the Termination
Date or, if the Debt being modified, amended, restated, amended and restated, refinanced,
refunded, renewed or extended is subject to scheduled amortization or payments of principal,
prior to any such scheduled amortization or payments of principal; (c) if the Debt being
modified, refinanced, refunded, renewed, replaced, exchanged or extended is subordinated in
right of payment to the Obligations, such modification, refinancing, refunding, renewal,
replacement, exchange or extension is subordinated in right of payment to the Obligations on
terms as favorable in all material respects to the Lenders as those contained in the
documentation governing the Debt being modified, refinanced, refunded, renewed, replaced,
exchanged or extended; (d) the terms and conditions (including, if applicable, as to
collateral) of any such modified, refinanced, refunded, renewed, replaced, exchanged or
extended Debt are, (A) either (i) customary for similar debt securities in light of
then-prevailing market conditions (it being understood that such Debt shall not include any
financial maintenance covenants and that any negative covenants shall be incurrence-based)
or (ii) not materially less favorable to the Loan Parties or the Lenders, taken as a whole,
than the terms and conditions of the Debt being modified, refinanced, refunded, renewed,
replaced, exchanged or extended and (B) when taken as a whole (other than interest rate and
redemption premiums), not more restrictive to the Company and its Subsidiaries than those
set forth in this Agreement (provided that a certificate of a Responsible Officer of
the Company delivered to the Agent in good faith at least five Business Days prior to the
incurrence of such Debt, together with a reasonably detailed description of the material
terms and conditions of such Debt or drafts of the documentation relating thereto, stating
that the Company has determined in good faith that such terms and conditions satisfy the
requirement set out in the foregoing clause (d), shall be conclusive evidence that such
terms and conditions satisfy such requirement unless the Agent provides notice to the
Company of its objection during such five Business Day period); (e) any such modification,
refinancing, refunding, renewal, replacement, exchange or extension is incurred by the
Person who is the obligor or guarantor, or a successor to the obligor or guarantor, on the
Debt being modified, refinanced, refunded, renewed, replaced or extended; (f) any such
modification, refinancing, refunding, renewal, replacement, exchange or extension of
Permitted Second Lien Debt shall be subject to (and the holders of, and agents and/or
trustees in respect of, any such Debt shall be bound by) the Intercreditor Agreement; and
(g) at the time thereof, no Event of Default shall have occurred and be continuing.
“Permitted Second Lien Debt” means (a) the Company’s 9.75% Senior Secured Notes
due 2018, (b) the Company’s 10.625% Senior Secured Notes due 2019, and (c) Debt incurred
after the date hereof and secured by second-priority Liens on the Collateral;
provided that in the case of this clause (c), (i) the terms and conditions
(including, if applicable, as to collateral) of any such additional Debt are, (A) either (1)
customary for similar debt securities in light of then-prevailing market conditions (it
being understood that such Debt shall not include any financial maintenance covenants and
that any negative covenants shall be incurrence-based) or (2) not materially less favorable
to the Loan Parties or the Lenders, taken as a whole, than the terms and conditions of the
Debt described in the foregoing clauses (a) and (b), and (B) when taken as a whole (other
than interest rate and redemption premiums), not materially more restrictive to the Company
and its Subsidiaries than those set forth in this Agreement (provided that a
certificate of a Responsible Officer of the Company delivered to the Agent in good faith at
least five Business Days prior to the incurrence of such Debt, together with a reasonably
detailed description of the material terms and conditions of such Debt or drafts of the
documentation relating thereto, stating that the Company has determined in good faith that
such terms and conditions satisfy the requirement set out in this clause (i), shall be
conclusive evidence that such terms and conditions satisfy such requirement unless the Agent
provides notice to the Company of its objection during such five Business Day period) and
(ii) such additional Debt shall be subject to (and the holders thereof and any agent and/or
trustee on their behalf shall be bound by) the Intercreditor Agreement.
“Person” means an individual, partnership, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture, limited or
unlimited liability company or other entity, or a government or any political subdivision or
agency thereof.
27
“Plan” means a Single Employer Plan or a Multiple Employer Plan, but excluding
any Canadian Pension Plan.
“
Potential Defaulting Lender” means, at any time, a Lender (i) as to which the
Agent has notified the Company that an event of the kind referred to in the definition of
“Lender Insolvency Event” has occurred and is continuing in respect of any financial
institution affiliate of such Lender, (ii) as to which the Agent or the Issuing Banks have
in good faith reasonably determined and notified the Company that such Lender or its Parent
Company or a financial institution affiliate thereof has notified the Agent, or has stated
publicly, that it will not comply with its funding obligations under any other loan
agreement or
credit agreement or other similar/other financing agreement or (iii) that has,
or whose Parent Company has, a rating for any class of its long-term senior unsecured debt
lower than BBB- by S&P and Baa3 by Xxxxx’x. Any determination that a Lender is a Potential
Defaulting Lender under any of clauses (i) through (iii) above will be made by the Agent or,
in the case of clause (ii), the Issuing Banks, as the case may be, in their sole discretion
acting in good faith and upon consultation with the Company. The Agent will promptly send
to all parties hereto a copy of any notice to the Company provided for in this definition.
“PPSA” means the Personal Property Security Act of Ontario; provided
that, if perfection or the effect of perfection or non-perfection or the priority of any
security interest in any Collateral is governed by the PPSA as in effect in a Canadian
jurisdiction other than Ontario, or by the Civil Code of Quebec, “PPSA” means the Personal
Property Security Act as in effect from time to time in such other jurisdiction or the Civil
Code of Quebec, as applicable, for purposes of the provisions hereof relating to such
perfection, effect of perfection or non-perfection or priority.
“Projections” has the meaning specified in Section 5.01(h)(viii).
“Protective Advance” has the meaning specified in Section 2.01(c).
“Public Debt Rating” means, as of any date, for any Person the rating that has
been most recently announced by either S&P or Xxxxx’x, as the case may be, for any class of
long-term senior secured debt issued by such Person or, if any such rating agency shall have
issued more than one such rating, the lowest such rating issued by such rating agency. If
S&P or Xxxxx’x shall change the basis on which ratings are established, each reference to
the Public Debt Rating announced by S&P or Xxxxx’x, as the case may be, shall refer to the
then equivalent rating by S&P or Xxxxx’x, as the case may be.
“Ratable Share” of any amount means, (a) with respect to any US Lender at any
time, the product of such amount times a fraction the numerator of which is the
amount of such Lender’s US Revolving Credit Commitment at such time (or, if the US Revolving
Credit Commitments shall have been terminated pursuant to Section 2.05 or 6.01, such
Lender’s US Revolving Credit Commitment as in effect immediately prior to such termination)
and the denominator of which is the aggregate amount of all US Revolving Credit Commitments
at such time (or, if the US Revolving Credit Commitments shall have been terminated pursuant
to Section 2.05 or 6.01, the aggregate amount of all US Revolving Credit Commitments as in
effect immediately prior to such termination) and (b) with respect to any Canadian Lender at
any time, the product of such amount times a fraction the numerator of which is the
amount of such Lender’s Canadian Revolving Credit Commitment at such time (or, if the
Canadian Revolving Credit Commitments shall have been terminated pursuant to Section 2.05 or
6.01, such Lender’s Canadian Revolving Credit Commitment as in effect immediately prior to
such termination) and the denominator of which is the aggregate amount of all Canadian
Revolving Credit Commitments at such time (or, if the Canadian Revolving Credit Commitments
shall have been terminated pursuant to Section 2.05 or 6.01, the aggregate amount of all
Canadian Revolving Credit Commitments as in effect immediately prior to such termination).
“Register” has the meaning specified in Section 9.08(e).
“Related Parties” means, with respect to any specified Person, such Person’s
Affiliates and the respective directors, officers, employees, agents, trustees, partners and
advisors of such Person and such Person’s Affiliates.
28
“Rent Reserve” means, with respect to any plant, warehouse, distribution center
or other operating facility where any Eligible Inventory or Eligible Equipment subject to
landlords’ or warehousemen’s Liens or other Liens arising by operation of law is located,
and with respect to which no Landlord Lien Waiver has been delivered to Agent, a reserve
equal to three month’s rent at such plant, warehouse, distribution center, or other
operating facility, and such other reserve amounts that may be determined by the Agent in
its reasonable discretion.
“Replacement Lender” has the meaning specified in Section 2.20.
“Required Lenders” means at any time Lenders owed at least a majority in
interest of the sum of (a) the then aggregate unpaid principal amount of the Advances
outstanding at such time, (b) the aggregate Unused Revolving Credit Commitments at such time
and (c) the aggregate Letter of Credit Obligations at such time (with the aggregate amount
of each Lender’s risk participation and funded participation in Letter or Credit Obligations
being deemed held by such Lender for purposes of this definition); provided,
however, that if any Lender shall be a Defaulting Lender at such time, there shall
be excluded from the determination of Required Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (B) the Unused Revolving Credit Commitment of such Lender at such
time and (C) the Letter of Credit Obligations held or deemed held by such Lender at such
time.
“Reserves” means, at any time of determination and without duplication, (a) a
reserve for Secured Agreements, (b) any Rent Reserves, (c) as regards the Canadian Loan
Parties, any Canadian Priority Payables Reserves and (d) such other reserves as determined
from time to time in the reasonable discretion of the Agent to preserve and protect the
value of the Collateral.
“Responsible Officer” means the chief executive officer, president, chief
financial officer, secretary, assistant secretary, treasurer, assistant treasurer or
controller of a Loan Party. Any document delivered hereunder or under any other Loan
Document that is signed by a Responsible Officer of a Loan Party shall be conclusively
presumed to have been authorized by all necessary corporate, partnership and/or or other
action on the part of such Loan Party and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Loan Party.
“Revolving Credit Commitment” means a Canadian Revolving Credit Commitment
and/or a US Revolving Credit Commitment, as the context may require.
“Revolving Credit Facility” means the Canadian Revolving Credit Facility and/or
the US Revolving Credit Facility, as the context may require.
“Revolving Credit Facility Usage” means, at any time, the sum of the Canadian
Revolving Credit Facility Usage and the US Revolving Credit Facility Usage at such time.
“S&P” means Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc.
“Secured Agreements” means, to the extent designated as such by the Company in
writing to the Agent from time to time in accordance with Section 8.13, as to each Lender,
for so long as such Lender is a party to the Credit Agreement, (a) all agreements and other
documents relating to any treasury management services provided by such Lender and its
Affiliates to the Company or any of its Subsidiaries, (b) all agreements evidencing any
other obligations of the Company and any of its Subsidiaries owing to such Lender and its
Affiliates including, without limitation, all letters of credit issued by such Lender and
its Affiliates for the benefit of the Company or any of its Subsidiaries (other than Letters
of Credit issued hereunder), (c) all Hedge Agreements entered into with the Company or any
of its Subsidiaries by such Lender and its Affiliates and (d) each agreement or instrument
delivered by any Loan Party or Subsidiary of the Company pursuant to any of the foregoing,
as the same may be amended from time to time in accordance with the provisions thereof.
29
“Secured Parties” means the Canadian Secured Parties and/or the US Secured
Parties, as the context may require.
“Secured Obligations” means the Canadian Secured Obligations and/or the US
Secured Obligations, as the context may require.
“Security Agreements” means the Canadian Security Agreement and/or the US
Security Agreement, as the context may require.
“Significant Loan Party” means each Borrower and any other Loan Party with
assets included in Collateral having a value of at least $50,000,000 as of the end of the
preceding fiscal year of the Company.
“Single Employer Plan” means a single employer plan, as defined in Section
4001(a)(15) of ERISA, that (a) is maintained for employees of any Loan Party or any ERISA
Affiliate and no Person other than the Loan Parties and the ERISA Affiliates or (b) was so
maintained and in respect of which any Loan Party or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan has been or were to be
terminated.
“Solvent” means, with respect to any Person on a particular date, that on such
date (a) the fair value of the property of such Person is greater than the total amount of
liabilities, including, without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than the amount that
will be required to pay the probable liability of such Person on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person’s ability to pay such debts and liabilities as
they mature and (d) such Person is not engaged in business or a transaction, and is not
about to engage in business or a transaction, for which such Person’s property would
constitute an unreasonably small capital. The amount of contingent liabilities at any time
shall be computed as the amount that, in the light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
“Specified Collateral” has the meaning specified in the US Security Agreement
and in the Canadian Security Agreement.
“Specified Indebtedness” means the Company’s 7.25% Senior Notes due 2013.
“Subsidiary” of any Person means any corporation, partnership, joint venture,
limited liability company, trust or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation (irrespective of whether at the time capital stock of
any other class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest in such trust
or estate is at the time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such Person’s other
Subsidiaries.
“Supermajority Lenders” means, at any time, Lenders owed or holding at least 66
2/3% in interest of the sum of (a) the aggregate principal amount of the Advances
outstanding at such time, (b) the aggregate Unused Revolving Credit Commitment at such time
and (c) the aggregate Letter of Credit Obligations at such time (with the aggregate amount
of each Lender’s risk participation and funded participation in Letter or Credit Obligations
being deemed held by such Lender for purposes of this definition); provided,
however, that if any Lender shall be a Defaulting Lender at such time, there shall
be excluded from the determination of Supermajority Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (B) the Unused Revolving Credit Commitment of such Lender at such
time and (C) the Letter of Credit Obligations held or deemed held by such Lender at such
time.
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“Termination Date” means the earliest of (a) the date that is five (5) years
after the Effective Date, (b) the date of termination in whole of the Revolving Credit
Commitments pursuant to Section 2.05, 6.01 or 9.14(b) and (c) the 90th day prior
to the maturity date of the Specified Indebtedness to the extent that such indebtedness
shall not have been redeemed, defeased or otherwise satisfied in full, each as provided in
the indenture pursuant to which the Specified Indebtedness was issued, on or prior to such
date.
“Termination Event” means (a) the filing of a notice of intent to terminate in
whole or in part a Canadian Pension Plan or the treatment of a Canadian Pension Plan
amendment as a termination or partial termination; and (b) the institution of proceedings by
any governmental or regulatory authority to terminate in whole or in part or have a trustee
or third party administrator appointed to administer a Canadian Pension Plan; and, for the
purposes of section 5.01(h)(x) only, shall also include (c) any other event or condition
which would be reasonably likely to constitute grounds for the termination of, winding up or
partial termination or winding up of, or the appointment of a trustee or third party
administrator to administer, any Canadian Pension Plan.
“Type” refers to the distinction between Advances bearing interest at the Base
Rate and Advances bearing interest at the Eurodollar Rate.
“
UCC” means the Uniform Commercial Code as in effect in the State of
New York;
provided that, if perfection or the effect of perfection or non-perfection or the
priority of any security interest in any Collateral is governed by the Uniform Commercial
Code as in effect in a jurisdiction other than the State of
New York, “
UCC” means
the Uniform Commercial Code as in effect from time to time in such other jurisdiction for
purposes of the provisions hereof relating to such perfection, effect of perfection or
non-perfection or priority.
“Unissued Letter of Credit Commitment” means the US Unissued Letter of Credit
Commitment.
“United States” and “US” mean the United States of America.
“Unused Revolving Credit Commitment” means the Canadian Unused Revolving Credit
Commitment and/or the US Unused Revolving Credit Commitment, as the context may require.
“US Advance” means an advance by a Lender as part of a US Borrowing and refers
to a Base Rate Advance or a Eurodollar Rate Advance and shall be deemed to include any US
Protective Advance made hereunder.
“US Borrowing Base” means, at any time, as to the Company and the US
Guarantors, (a) the US Loan Value less (b) applicable Reserves at such time.
“US Borrowing” means a borrowing consisting of simultaneous Advances of the
same Type made by each of the Lenders pursuant to Section 2.01(a)(i).
“US Collateral” means all “Collateral” referred to in the US Security Agreement
and the other Collateral Documents relating to security under the US Revolving Credit
Facility, and all other property of the Company and the other US Loan Parties that is or is
intended to be subject to any Lien in favor of the Agent for the benefit of the US Secured
Parties pursuant to the terms of the Collateral Documents.
“US Excess Availability” means, at any time, (1) the US Line Cap minus (2) the
US Revolving Credit Facility Usage at such time.
“US Guarantor” means the Company and each US Subsidiary Guarantor.
“US Issuing Bank” means any Issuing Bank with outstanding US Letter of Credit
Commitments.
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“US Letter of Credit” means any standby letter of credit or commercial letter
of credit issued under the US Letter of Credit Facility.
“US Letter of Credit Commitment” means, with respect to each Issuing Bank, the
obligation of such Issuing Bank to issue Letters of Credit for the account of the Company
and its Subsidiaries in (a) the amount set forth opposite such Issuing Bank’s name on
Schedule I hereto under the caption “US Letter of Credit Commitment” or (b) if such Issuing
Bank has entered into one or more Assignment and Acceptances or is a Lender that has become
an Issuing Bank after the Effective Date in accordance with the definition of “Issuing
Bank”, the amount set forth for such Issuing Bank in the Register maintained by the Agent
pursuant to Section 9.08(e) as such Issuing Bank’s “US Letter of Credit Commitment”, in each
case as such amount may be reduced prior to such time pursuant to Section 2.05.
“US Letter of Credit Facility” means, at any time, an amount equal to the least
of (a) the aggregate amount of the Issuing Banks’ US Letter of Credit Commitments at such
time, (b) $250,000,000 and (c) the aggregate amount of the US Revolving Credit Commitments,
as such amount may be reduced at or prior to such time pursuant to Section 2.05.
“US Letter of Credit Obligations” means, at any time, the sum of (i) the
Available Amount of all US Letters of Credit issued and outstanding and (ii) the aggregate
amount of all amounts drawn under US Letters of Credit that have not been reimbursed by the
Company or converted to US Advances.
“US Lender” means, at any time, a Lender that has a US Revolving Credit
Commitment at such time.
“US Line Cap” means, at any time, the lesser of (i) the US Borrowing Base and
(ii) the US Revolving Credit Commitments.
“US Loan Value” means, at any time of determination, an amount (calculated
based on the most recent Borrowing Base certificate delivered to the Agent in accordance
with this Agreement) equal to (a) with respect to Eligible Receivables of the US Loan
Parties, 85% of Eligible Receivables less the applicable Dilution Reserve plus (b)
with respect to Eligible Inventory of the US Loan Parties, the lesser of (i) 65% of Eligible
Inventory and (ii) 85% of the Net Orderly Liquidation Value of Eligible Inventory (based on
the then most recent independent inventory appraisal) on any date of determination
plus (c) after completion by the Co-Collateral Agents, and receipt by the Agent, of
a satisfactory equipment appraisal (as notified in writing by the Agent to the Company)
(provided that such appraisal shall be in form and substance substantially similar
to the 2009 equipment appraisal prepared in connection with the Existing Credit Agreement)
the lesser of (x) $35,000,000 and (y) 75% of the Net Orderly Liquidation Value of Eligible
Equipment of the US Loan Parties, provided that the lesser of the values included in
clauses (x) and (y) of this clause (c) shall not exceed the maximum amount that, if secured,
would not require security to be granted under the Indenture.
“US Loan Party” means the Company and each US Subsidiary Guarantor.
“US Obligations” means all liabilities and obligations of every nature of each
US Loan Party from time to time owed to the Agent, the Co-Collateral Agents, the Lenders,
the other US Secured Parties or any of them, under (x) the Loan Documents relating to the US
Revolving Credit Facility and (y) subject to Section 8.13, the US Secured Agreements,
whether for principal, interest (including interest which, but for the filing of a petition
or other proceeding in a bankruptcy or insolvency proceeding with respect to such US Loan
Party, would have accrued on any Obligation, whether or not a claim is allowed against such
Loan Party for such interest in the related bankruptcy or insolvency proceeding), fees,
expenses, indemnification or otherwise and whether primary, secondary, direct, indirect,
contingent, fixed or otherwise.
“US Protective Advance” has the meaning specified in Section 2.01(c).
32
“US Revolving Credit Commitment” means as to any Lender (a) the amount set
forth opposite such Lender’s name on Schedule I hereto as such Lender’s “US Revolving Credit
Commitment”, which shall be designated as a Commitment under the Revolving Credit Facility,
(b) that is an Assuming Lender, the amount set forth in the applicable Assumption Agreement
or (c) if such Lender has entered into an Assignment and Acceptance, the amount set forth
for such Lender in the Register maintained by the Agent pursuant to Section 9.08(e), as such
amount may be reduced pursuant to Section 2.05 or increased pursuant to Section 2.21.
“US Revolving Credit Exposure” means, with respect to any Lender at any time,
such Lender’s Ratable Share of the US Revolving Credit Facility Usage at such time.
“US Revolving Credit Facility” means, at any time, the aggregate amount of the
Lenders’ US Revolving Credit Commitments at such time.
“US Revolving Credit Facility Usage” means, at any time, the amount obtained by
adding (i) the aggregate outstanding principal amount of all US Advances made by the Lenders
and (ii) the aggregate outstanding US Letter of Credit Obligations.
“US Secured Agreements” means any Secured Agreement that is entered into by and
between the Company or any of its Subsidiaries and any Lender (or Affiliate thereof).
“US Secured Parties” means, collectively, the Agent, each Co-Collateral Agent,
each US Lender, each Issuing Bank and each Lender or Affiliate of a Lender in its capacity
as a counterparty to a US Secured Agreement.
“US Secured Obligations” means the “Secured Obligations”, as defined in the US
Security Agreement.
“US Security Agreement” means the Security Agreement, dated as of October 18,
2005, as amended and restated as of March 31, 2009 and on the date hereof, and as may be
further amended, amended and restated, supplemented or otherwise modified from time to time.
“US Subsidiary Guarantor” means the direct and indirect wholly-owned (other
than directors’ qualifying shares or similar holdings under applicable law) Subsidiaries of
the Company organized under the laws of a state of the United States of America as listed on
Part A of Schedule II hereto and each other Subsidiary of the Company that shall be required
to execute and deliver a guaranty pursuant to Section 5.01(i).
“US Unissued Letter of Credit Commitment” means, with respect to any Issuing
Bank, the obligation of such Issuing Bank to issue US Letters of Credit for the account of
the Company or its Subsidiaries in an amount equal to the excess of (a) the amount of its US
Letter of Credit Commitment over (b) the aggregate US Letter of Credit Obligations
outstanding to such Issuing Bank.
“US Unused Revolving Credit Commitment” means, with respect to each Lender at
any time, (a) such Lender’s US Revolving Credit Commitment at such time minus (b)
the sum of (i) the aggregate principal amount of all US Advances made by such Lender (in its
capacity as a Lender) and outstanding at such time, plus (ii) such Lender’s Ratable
Share of (A) the aggregate Available Amount of all US Letters of Credit outstanding at such
time and (B) the aggregate principal amount of all US Advances made by each Issuing Bank
pursuant to Section 2.03(c) that have not been ratably funded by such Lender and outstanding
at such time.
“Voting Stock” means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended by the happening
of such a contingency.
33
“Weighted Average Life to Maturity” means, when applied to any Debt at any
date, the number of years obtained by dividing: (a) the sum of the products obtained by
multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity
or other required payments of principal, including payment at final maturity, in respect
thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will
elapse between such date and the making of such payment; by (b) the then outstanding
principal amount of such Debt.
“Withdrawal Liability” has the meaning specified in Part I of Subtitle E of
Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement in the computation of
periods of time from a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding”.
SECTION 1.03. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with generally accepted accounting principles in the United States
of America consistent with those applied in the preparation of the financial statements referred to
in Section 4.01(e) (“GAAP”). If at any time any change in GAAP or the application thereof
would affect the computation of any financial ratio or requirement set forth in any Loan Document,
and either the Company or the Required Lenders shall so request, the Agent, the Lenders and the
Company shall negotiate in good faith to amend such ratio or requirement to preserve the original
intent thereof in light of such change in GAAP or the application thereof (subject to the approval
of the Required Lenders); provided that, until so amended, (i) such ratio or requirement
shall continue to be computed in accordance with GAAP or the application thereof prior to such
change therein and (ii) the Borrowers shall provide to the Agent financial statements and other
documents required under this Agreement or as reasonably requested hereunder setting forth a
reconciliation between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP or the application thereof.
SECTION 1.04. Reserves. When any Reserve is to be established or a change in any
amount, percentage, reserve, eligibility criteria or other item in the definitions of the terms
“Borrowing Base”, “Eligible Inventory”, “Eligible Receivables”, “Eligible Equipment” and “Rent
Reserve” is to be determined in each case in the Agent’s “reasonable discretion”, such Reserve
shall be implemented or such change shall become effective on the Business Day immediately
following delivery of a written notice thereof to the Borrower, or immediately, without prior
written notice, during the continuance of a Default.
SECTION 1.05. Letter of Credit Amount. Unless otherwise specified herein, the amount of a
Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; provided, however, that with respect to any Letter of Credit
that, by its terms or the terms of any L/C Related Document related thereto, provides for one or
more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be
deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such
increases, whether or not such maximum stated amount is in effect at such time.
SECTION 1.06. Currency Equivalents Generally. Any amount specified in this Agreement
(other than in Article 2) or in any other Loan Document to be in Dollars shall also include the
equivalent of such amount in any currency other than Dollars to the extent necessary to give effect
to the intent, where applicable, that this Agreement apply to Kodak Canada or the other Canadian
Loan Parties, such equivalent amount thereof in the applicable currency to be determined by the
Agent at such time on the basis of the Exchange Rate for the purchase of such currency with
Dollars.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND LETTERS OF CREDIT
SECTION 2.01. The Advances and Letters of Credit. (a) Revolving Credit
Facility.
(i) US Borrowings. Each US Lender severally agrees, on the terms and
conditions hereinafter set forth, to make US Advances in Dollars to the Company from time to
time on any Business Day during the period from the Effective Date until the Termination
Date, in each case (A) in an amount for each such US
34
Advance not to exceed such US Lender’s US Unused Revolving Credit Commitment at such
time and (B) in an aggregate amount for all such US Advances not to exceed such US Lender’s
ratable portion (based on the aggregate amount of the US Unused Revolving Credit Commitments
at such time) of the US Line Cap at such time. Each US Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof (or such
lesser amount as may be applied and reborrowed in accordance with Section 2.18) and shall
consist of Advances of the same Type made on the same day by the US Lenders ratably
according to their respective US Revolving Credit Commitments. Within the limits of each US
Lender’s US Revolving Credit Commitment, the Company may borrow under this Section 2.01(a),
prepay pursuant to Section 2.10 and reborrow under this Section 2.01(a).
(ii) Canadian Borrowings. Each Canadian Lender severally agrees, on the terms
and conditions hereinafter set forth, to make Canadian Advances in Dollars to Kodak Canada
from time to time on any Business Day during the period from the Effective Date until the
Termination Date, in each case (A) in an amount for each such Canadian Advance not to exceed
such Canadian Lender’s Canadian Unused Revolving Credit Commitment at such time and (B) in
an aggregate amount for all such Canadian Advances not to exceed such Canadian Lender’s
ratable portion (based on the aggregate amount of the Canadian Unused Revolving Credit
Commitments at such time) of the Canadian Line Cap at such time. Each Canadian Borrowing
shall be in an aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in
excess thereof (or such lesser amount as may be applied and reborrowed in accordance with
Section 2.18) and shall consist of Advances of the same Type made on the same day by the
Canadian Lenders ratably according to their respective Canadian Revolving Credit
Commitments. Within the limits of each Canadian Lender’s Canadian Revolving Credit
Commitment, Kodak Canada may borrow under this Section 2.01(a), prepay pursuant to Section
2.10 and reborrow under this Section 2.01(a).
(b) Letters of Credit. Each Issuing Bank agrees, on the terms and conditions
hereinafter set forth, and in reliance upon the agreements of the other Lenders set forth in this
Agreement, to issue or continue US Letters of Credit for the account of the Company and its
Subsidiaries from time to time on any Business Day during the period from the Effective Date until
30 days before the Termination Date in an aggregate Available Amount not to exceed (i) for all US
Letters of Credit at any time the US Letter of Credit Facility at such time, (ii) for all US
Letters of Credit issued by each Issuing Bank at any time such Issuing Bank’s US Letter of Credit
Commitment at such time (provided that, each Issuing Bank on the Effective Date may elect
in its sole discretion to continue existing letters of credit listed on Schedule 2.01(b) as Letters
of Credit hereunder in an amount in excess of its US Letter of Credit Commitment, provided that any
further extension, amendment or continuation of such Letters of Credit hereunder shall be made
within the applicable Issuing Bank’s US Letter of Credit Commitment unless otherwise agreed by such
Issuing Bank in its sole discretion) and (iii) for each such US Letter of Credit an amount equal to
the US Unused Revolving Credit Commitments of the Lenders at such time. No US Letter of Credit
shall have an expiration date (including all rights of the Company or the beneficiary to require
renewal) later than 10 Business Days before the Termination Date. Within the limits referred to
above, the Company may from time to time request the Issuance of US Letters of Credit under this
Section 2.01(b). Each letter of credit listed on Schedule 2.01(b) shall be deemed to constitute a
US Letter of Credit issued hereunder.
(c) Protective Advances. The Agent shall be authorized, in its discretion, at any
time that any conditions in Section 3.02 are not satisfied, to make US Advances in Dollars that are
Base Rate Advances (any such US Advances made pursuant to this Section 2.01(c), “US Protective
Advances”) or Canadian Advances that are Base Rate Advances (any such Canadian Advances made
pursuant to this Section 2.01(c), “Canadian Protective Advances” and, together with the US
Protective Advances, the “Protective Advances”) in an aggregate amount not to exceed
$30,000,000 at any time outstanding, if the Agent reasonably deems such Advances necessary or
desirable to preserve or protect Collateral, or to enhance the collectability or repayment of
Obligations; provided that no Protective Advance shall continue for more than 90
consecutive days (and no further Protective Advance may be made for at least five consecutive days
after the repayment by the applicable Borrower of any outstanding Protective Advances). Protective
Advances shall constitute Obligations secured by the Collateral and shall be entitled to all of the
benefits of the Loan Documents. Immediately upon the making of a Protective Advance, each
applicable Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to,
purchase from the Agent a risk participation in such Protective Advance in an amount equal to the
product of such applicable Lender’s Ratable Share times the amount of such Protective Advance.
From and after the date, if any, on which any Lender is required to fund its participation in any
Protective Advance purchased hereunder, the Agent shall promptly
35
distribute to such Lender, such Lender’s Ratable Share of all payments of principal and
interest and all proceeds of Collateral received by the Agent in respect of such Protective Advance
(and prior to such date, all payments on account of the Protective Advances shall be payable to
Agent solely for its own account). The Supermajority Lenders may at any time revoke the Agent’s
authority to make further Protective Advances by written notice to the Agent. Absent such
revocation, the Agent’s determination that funding of a Protective Advance is appropriate shall be
conclusive. In no event shall Protective Advances cause the aggregate outstanding amount of the
Advances of any Lender, plus such Lender’s Ratable Share of the outstanding amount of all
Letter of Credit Obligations to exceed such Lender’s Revolving Credit Commitment. Protective
Advances shall be payable by the Borrowers on demand.
SECTION 2.02.
Making the Advances. (a) Except as otherwise provided in Section
2.03(c), each Borrowing shall be made on notice, given not later than (x) 11:00 A.M. (
New York City
time) on the third Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances or (y) 11:00 A.M. (
New York City time) on the date
of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
applicable Borrower to the Agent, which shall give to each applicable Lender prompt notice thereof
by telecopier or any other electronic means agreed to by the Agent. Each such notice of a
Borrowing (a “
Notice of Borrowing”) shall be by telephone, confirmed promptly in writing,
or by telecopier (or any other electronic means agreed to by the Agent), in substantially the form
of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing, (ii)
whether such Borrowing is a US Borrowing or a Canadian Borrowing, (iii) Type of Advances comprising
such Borrowing, (iv) aggregate amount of such Borrowing and (v) in the case of a Borrowing
consisting of Eurodollar Rate Advances, the initial Interest Period for each such Advance. Each
applicable Lender shall, before 1:00 P.M. (New York City time) on the date of such Borrowing make
available for the account of its Applicable Lending Office to the Agent at the Agent’s Account, in
same day funds, such Lender’s Ratable Share of such Borrowing. After the Agent’s receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will
make such funds available to the applicable Borrower at the Agent’s address referred to in Section
9.02(a).
(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrowers may
not select Eurodollar Rate Advances for any Borrowing if the aggregate amount of such Borrowing is
less than $10,000,000 (or $5,000,000, in the case of Canadian Borrowings) or if the obligation of
the Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 or
2.12 and (ii) the Eurodollar Rate Advances may not be outstanding as part of more than eighteen
separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower delivering such
notice. In the case of any Borrowing that the related Notice of Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the applicable Borrower shall indemnify each applicable
Lender against any loss, cost or expense incurred by such Lender as a result of any failure of such
Borrower to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing
the applicable conditions set forth in Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the Advance to be made by
such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made
on such date.
(d) Unless the Agent shall have received notice from a Lender prior to the time of any
Borrowing that such Lender will not make available to the Agent such Lender’s ratable portion of
such Borrowing, the Agent may assume that such Lender has made such portion available to the Agent
on the date of such Borrowing in accordance with subsection (a) of this Section 2.02, as
applicable, and the Agent may, in reliance upon such assumption, make available to the applicable
Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have
so made such ratable portion available to the Agent, such Lender and the applicable Borrower
severally agree to repay to the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made available to such Borrower until
the date such amount is repaid to the Agent, at (i) in the case of a Borrower, the interest rate
applicable at the time to the Advances comprising such Borrowing and (ii) in the case of such US
Lender, the Federal Funds Rate or such Canadian Lender, the Bank of Canada Overnight Rate. If such
Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute
such Lender’s Advance as part of such Borrowing for purposes of this Agreement.
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(e) The failure of any Lender to make the Advance to be made by it as part of any Borrowing
shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the
date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to
make the Advance to be made by such other Lender on the date of any Borrowing.
(f) Each Lender may, at its option, make any Advance available to Kodak Canada by causing any
foreign or domestic branch or Affiliate of such Lender to make such Advance; provided that
any exercise of such option shall not affect the obligation of Kodak Canada to repay such Advance
in accordance with the terms of this Agreement.
SECTION 2.03.
Issuance of and Drawings and Reimbursement Under Letters of Credit.
(a)
Request for Issuance. (i) Each Letter of Credit shall be issued upon notice,
given not later than 11:00 A.M. (New York City time) on the fifth Business Day prior to the date of
the proposed Issuance of such Letter of Credit (or on such shorter notice as the applicable Issuing
Bank may agree), by the Company to any Issuing Bank, and such Issuing Bank shall give the Agent,
prompt notice thereof. Each such notice by the Company of Issuance of a Letter of Credit (a
“
Notice of Issuance”) shall be by telephone, confirmed promptly in writing, or by
telecopier (or any other electronic means agreed to by the Agent), specifying therein the requested
(A) date of such Issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit (which shall not be later than 10 Business
Days before the Termination Date), (D) name and address of the beneficiary of such Letter of
Credit, (E) form of such Letter of Credit, such Letter of Credit shall be issued pursuant to such
application and agreement for letter of credit as such Issuing Bank and the Company shall agree for
use in connection with such requested Letter of Credit (a “
Letter of Credit Agreement”) and
(F) such other matters as the applicable Issuing Bank may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Notice of Issuance shall specify in form and
detail satisfactory to the applicable Issuing Bank, (A) the Letter of Credit to be amended, (B) the
proposed date of amendment thereof (which shall be a Business Day), (C) the nature of the proposed
amendment and (D) such other matters as the applicable Issuing Bank may require. Additionally, the
Company shall furnish to the applicable Issuing Bank and the Agent such other documents and
information pertaining to such requested Letter of Credit issuance or amendment, as such Issuing
Bank or the Agent may require. If the requested form of such Letter of Credit is acceptable to the
applicable Issuing Bank in its reasonable discretion (it being understood that any such form shall
have only explicit documentary conditions to draw and shall not include discretionary conditions),
such Issuing Bank will, upon fulfillment of the applicable conditions set forth in Section 3.02,
make such Letter of Credit available to the Company at its office referred to in Section 9.02 or as
otherwise agreed with the Company in connection with such Issuance. In the event and to the extent
that the provisions of any Letter of Credit Agreement shall conflict with this Agreement, the
provisions of this Agreement shall govern.
(ii) No Issuing Bank shall be under any obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any governmental authority or arbitrator shall by its
terms purport to enjoin or restrain such Issuing Bank from issuing the Letter of Credit, or
any law applicable to such Issuing Bank or any request or directive (whether or not having
the force of law) from any governmental authority with jurisdiction over such Issuing Bank
shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of
credit generally or the Letter of Credit in particular or shall impose upon such Issuing
Bank with respect to the Letter of Credit any restriction, reserve or capital requirement
(for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the
Effective Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or
expense which was not applicable on the Effective Date and which such Issuing Bank in good
xxxxx xxxxx material to it; (B) except as otherwise agreed by the Agent and such Issuing
Bank, the Letter of Credit is in an initial stated amount less than $100,000, in the case of
a commercial Letter of Credit, or $500,000, in the case of a standby Letter of Credit; (C)
the Letter of Credit is to be denominated in a currency other than Dollars; (D) any Lender
is at that time a Defaulting Lender, unless such Issuing Bank has entered into arrangements,
including the delivery of Cash Collateral, satisfactory to such Issuing Bank (in its sole
discretion) with the Company or such Lender to eliminate such Issuing Bank’s actual or
potential fronting exposure (after giving effect to Section 2.19(f)) with respect to the
Defaulting Lender arising from either the Letter of Credit then proposed to be issued or
that Letter of Credit and all other Letter of Credit Obligations as to which such Issuing
Bank has actual or potential fronting exposure, as it may elect in its sole discretion; or
(E) the Letter of Credit contains any provisions for automatic reinstatement of the stated
amount after any drawing thereunder.
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(iii) No Issuing Bank shall amend or continue any Letter of Credit if such Issuing Bank
would not be permitted at such time to issue the Letter of Credit in its amended or
continued form under the terms hereof.
(iv) Each Issuing Bank shall act on behalf of the Lenders with respect to any Letters
of Credit issued by it and the documents associated therewith, and each Issuing Bank shall
have all of the benefits and immunities (A) provided to the Agent in Article VIII with
respect to any acts taken or omissions suffered by such Issuing Bank in connection with
Letters of Credit issued by it or proposed to be issued by it and documents pertaining to
such Letters of Credit as fully as if the term “Agent” as used in Article VIII included such
Issuing Bank with respect to such acts or omissions, and (B) as additionally provided herein
with respect to such Issuing Bank.
(v) No Issuing Bank shall have any obligation to issue any Letter of Credit hereunder
if the expiry date of such requested Letter of Credit would occur more than twelve months
after the date of issuance or last extension thereof (it being understood that any such
Letter of Credit so issued shall be on such terms and conditions as may be specified by the
applicable Issuing Bank in its discretion, including with respect to expiry date and any
automatic renewal features).
(b)
Participations. By the Issuance of a US Letter of Credit (or an amendment to a US
Letter of Credit increasing or decreasing the amount thereof) and without any further action on the
part of the applicable Issuing Bank or the Lenders, such Issuing Bank hereby grants to each US
Lender, and each US Lender hereby acquires from such Issuing Bank, a participation in such US
Letter of Credit equal to such US Lender’s Ratable Share of the Available Amount of such US Letter
of Credit. The Company hereby agrees to each such participation. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Agent, for the account of such Issuing Bank, such US Lender’s Ratable Share of each drawing
made under a US Letter of Credit funded by such Issuing Bank and not reimbursed by the Company on
the date funded, or of any reimbursement payment required to be refunded to the Company for any
reason, which amount will be advanced, and deemed to be a US Advance hereunder, regardless of the
satisfaction of the conditions set forth in Section 3.02. Each US Lender acknowledges and agrees
that its obligation to acquire participations pursuant to this paragraph in respect of US Letters
of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever,
including any amendment, renewal or extension of any US Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the US Revolving Credit Commitments, and
that each such payment shall be made without any offset, abatement, withholding or reduction
whatsoever. Each US Lender further acknowledges and agrees that its participation in each US
Letter of Credit will be automatically adjusted to reflect such Lender’s Ratable Share of the
Available Amount of such US Letter of Credit at each time such Lender’s US Revolving Credit
Commitment is amended pursuant to an assignment in accordance with Section 9.08 or otherwise
pursuant to this Agreement.
(c)
Drawing and Reimbursement. The payment by an Issuing Bank of a draft drawn under
any Letter of Credit which is not reimbursed by the Company on the date funded shall constitute for
all purposes of this Agreement the making by any such Issuing Bank of an Advance under the US
Revolving Credit Facility which shall be a Base Rate Advance, in the amount of such draft, without
regard to whether the making of such a Advance would exceed such Issuing Bank’s US Unused Revolving
Credit Commitment. Each Issuing Bank shall give prompt notice to the Company and the Agent of each
drawing under any Letter of Credit issued by it. Upon written demand by such Issuing Bank, with a
copy of such demand to the Agent and the Company, each applicable Lender shall pay to the Agent
such Lender’s Ratable Share of such outstanding Advance pursuant to Section 2.03(b). Each
applicable Lender acknowledges and agrees that its obligation to make Advances pursuant to this
paragraph (c) in respect of Letters of Credit is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or termination of the
Revolving Credit Commitments, and that each such payment shall be made without any offset,
abatement, withholding or reduction whatsoever. Promptly after receipt thereof, the Agent shall
transfer such funds to such Issuing Bank. Each Lender agrees to fund its Ratable Share of an
outstanding Advance on (i) the Business Day on which demand therefor is made by such Issuing Bank,
provided that notice of such demand is given not later than 11:00 A.M. (New York City time)
on such Business Day, or (ii) the first Business Day next succeeding such demand if notice of such
demand is given after such time. If and to the extent that any Lender shall not have so made the
amount of such Advance available to the Agent, such Lender agrees to
38
pay to the Agent forthwith on demand such amount together with interest thereon, for each day
from the date of demand by any such Issuing Bank until the date such amount is paid to the Agent,
at the Federal Funds Rate for its account or the account of such Issuing Bank, as applicable. If
such Lender shall pay to the Agent such amount for the account of any such Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a Advance made by such
Lender on such Business Day for purposes of this Agreement, and the outstanding principal amount of
the Advance made by such Issuing Bank shall be reduced by such amount on such Business Day.
(d)
Letter of Credit Reports. Each Issuing Bank shall furnish (A) to the Agent (with
a copy to the Company) on the first Business Day of each month a written report summarizing
Issuance and expiration dates of Letters of Credit issued by such Issuing Bank during the preceding
month and drawings during such month under all Letters of Credit and (B) to the Agent (with a copy
to the Company) on the first Business Day of each calendar quarter a written report setting forth
the average daily aggregate Available Amount during the preceding calendar quarter of all Letters
of Credit issued by such Issuing Bank.
(e) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable Issuing
Bank and the Company when a Letter of Credit is issued, (i) the rules of the ISP shall apply to
each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for
Documentary Credits, as most recently published by the International Chamber of Commerce at the
time of issuance shall apply to each commercial Letter of Credit.
(f)
Failure to Make Advances. The failure of any Lender to make the Advance to be
made by it on the date specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Advance on such date, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made by such other Lender on such date. No
failure by any Lender to make such Advances shall limit or restrict the availability of any Letter
of Credit to the Company..
(g)
Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of
Credit issued or outstanding hereunder is in support of any obligations of, or is for the account
of, a Subsidiary, the Company shall be obligated to reimburse the applicable Issuing Bank hereunder
for any and all drawings under such Letter of Credit. The Company hereby acknowledges that the
issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Company,
and that the Company’s business derives substantial benefits from the businesses of such
Subsidiaries.
SECTION 2.04.
Fees. (a)
Commitment Fee. The Borrowers agree to pay to the
Agent for the account of each applicable Lender a commitment fee on the aggregate amount of such
Lender’s Unused Revolving Credit Commitment from the Effective Date until the Termination Date
calculated by multiplying such Lender’s Unused Revolving Credit Commitment by the Applicable
Percentage in effect from time to time, payable in arrears quarterly on the last day of each
January, April, July and October and on the Termination Date;
provided,
however,
that no commitment fee shall accrue on any of the Commitments of a Defaulting Lender so long as
such Lender shall be a Defaulting Lender.
(b)
Letter of Credit Fees. (i) The Borrowers shall pay to the Agent for the account
of each applicable Lender (other than a Defaulting Lender) a commission on such Lender’s Ratable
Share of the average daily aggregate Available Amount of all Letters of Credit issued and
outstanding from time to time at a rate per annum equal to the Applicable Margin for Eurodollar
Rate Advances in effect from time to time during such calendar quarter, payable in arrears
quarterly on the last day of each January, April, July and October, and on the Termination Date;
provided that the Applicable Margin shall be 2% above the Applicable Margin in effect if
the Borrowers are required to pay default interest pursuant to Section 2.07(b).
(ii) The Borrowers shall pay to each Issuing Bank, for its own account, a fronting fee
and such other commissions, issuance fees, transfer fees and other fees and charges in
connection with the Issuance or administration of each Letter of Credit as the Borrowers and
such Issuing Bank shall agree.
(c)
Agent’s Fees. The Company shall pay to the Agent for its own account the fees set
forth in the fee letter dated March 21, 2011 between the Company and the Agent, as such fee letter
may from time to time be amended by the Company and the Agent.
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SECTION 2.05.
Termination or Reduction of the Commitments. (a)
Optional.
The Borrowers shall have the right, upon at least three Business Days’ notice to the Agent, to
terminate in whole or permanently reduce in part the Unissued Letter of Credit Commitments and the
Unused Revolving Credit Commitments;
provided,
however, that each partial reduction
of a Facility (i) shall be in an aggregate amount of $10,000,000 (or $5,000,000, in the case of the
Canadian Revolving Credit Facility) and an integral multiple of $1,000,000 in excess thereof and
(ii) if made under any Revolving Credit Facility, shall be made ratably among the Lenders in
accordance with their Revolving Credit Commitments in respect of such Revolving Credit Facility.
(b)
Mandatory. Each Letter of Credit Facility shall be permanently reduced from time
to time on the date of each reduction in the applicable Revolving Credit Facility by the amount, if
any, by which the amount of such Letter of Credit Facility exceeds the applicable Revolving Credit
Facility after giving effect to such reduction of such Revolving Credit Facility.
SECTION 2.06.
Repayment of Advances. (a)
Revolving Credit Facility. The
applicable Borrower shall repay to the Agent for the ratable account of each applicable Lender on
the Termination Date the aggregate principal amount of the Advances made by such Lender to such
Borrower then outstanding.
(b)
Letter of Credit Drawings. The obligations of the Company under any Letter of
Credit Agreement and any other agreement or instrument relating to any Letter of Credit shall be
unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement, such Letter of Credit Agreement and such other agreement or instrument under all
circumstances, including, without limitation, the following circumstances (it being understood that
any such payment by the Company is without prejudice to, and does not constitute a waiver of, any
rights the Company might have or might acquire as a result of the payment by any Lender of any
draft or the reimbursement by the Company thereof, including, without limitation, pursuant to
Section 9.14):
(i) any lack of validity or enforceability of this Agreement or any Note, or of any
Letter of Credit Agreement, any Letter of Credit or any other agreement or instrument
relating thereto (such Letter of Credit Agreement, Letter of Credit and related instruments
or instruments being, collectively, the “L/C Related Documents”);
(ii) any change in the time, manner or place of payment of, or in any other term of,
all or any of the obligations of such Borrower in respect of any L/C Related Document or any
other amendment or waiver of or any consent to departure from all or any of the L/C Related
Documents;
(iii) the existence of any claim, set-off, defense or other right that such Borrower
may have at any time against any beneficiary or any transferee of a Letter of Credit (or any
Persons for which any such beneficiary or any such transferee may be acting), any Issuing
Bank, the Agent, any Lender or any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(iv) any statement or any other document presented under a Letter of Credit proving to
be forged, fraudulent, invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect;
(v) payment by any Issuing Bank under a Letter of Credit against presentation of a
draft or certificate that does not strictly comply with the terms of such Letter of Credit;
(vi) any exchange, release or non-perfection of any Collateral or other collateral, or
any release or amendment or waiver of or consent to departure from any guarantee, for all or
any of the obligations of the Borrowers in respect of the L/C Related Documents; or
(vii) any other circumstance or happening whatsoever, whether or not similar to any of
the foregoing, including, without limitation, any other circumstance that might otherwise
constitute a defense available to, or a discharge of, the Company or a guarantor.
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SECTION 2.07.
Interest on Advances. (a)
Scheduled Interest. Each Borrower
shall pay interest on the unpaid principal amount of each Advance owing by such Borrower to the
Agent for the account of each Lender from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i)
Base Rate Advances. During such periods as such Advance is a Base Rate
Advance, a rate per annum equal at all times to the sum of (x) the Base Rate in effect from
time to time
plus (y) the Applicable Margin in effect from time to time, payable in
arrears quarterly on the last day of each January, April, July and October during such
periods and on the date such Base Rate Advance shall be Converted or paid in full.
(ii)
Eurodollar Rate Advances. During such periods as such Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each Interest Period for
such Advance to the sum of (x) the Eurodollar Rate for such Interest Period for such Advance
plus (y) the Applicable Margin in effect from time to time, payable in arrears on
the last day of such Interest Period and, if such Interest Period has a duration of more
than three months, on the day of every third month during such Interest Period corresponding
to the first day of such Interest Period and on the date such Eurodollar Rate Advance shall
be Converted or paid in full.
(b)
Default Interest. Upon the occurrence and during the continuance of an Event of
Default under Section 6.01(a), the Agent may, and upon the request of the Required Lenders shall,
require and notify the Borrowers to pay interest (“
Default Interest”) on (i) the unpaid
principal amount of each Advance owing to each Lender, payable in arrears on the dates referred to
in clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and
(ii) to the fullest extent permitted by law, the amount of any interest, fee or other amount
payable hereunder that is not paid when due, from the date such amount shall be due until such
amount shall be paid in full, payable in arrears on the date such amount shall be paid in full and
on demand, at a rate per annum equal at all times to 2% per annum above the rate per annum required
to be paid on Base Rate Advances pursuant to clause (a)(i) above,
provided,
however, that following acceleration of the Advances pursuant to Section 6.01, Default
Interest shall accrue and be payable hereunder whether or not previously required by the Agent.
SECTION 2.08.
Interest Rate Determination. (a) The Agent shall give prompt notice to
the Company and the Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.07(a)(i) or (ii).
(b) If, with respect to any Eurodollar Rate Advances, Lenders owed at least 50% of the then
aggregate principal amount thereof notify the Agent that the Eurodollar Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Lenders of making, funding or
maintaining their respective Eurodollar Rate Advances for such Interest Period, the Agent shall
forthwith so notify the Company and the Lenders, whereupon (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance, and (ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Agent shall notify the Borrowers and such
Lenders that the circumstances causing such suspension no longer exist.
(c) If any Borrower shall fail to select the duration of any Interest Period for any
Eurodollar Rate Advances in accordance with the provisions contained in the definition of “Interest
Period” in Section 1.01, the Agent will forthwith so notify such Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest Period therefor, Convert
into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of Eurodollar Rate Advances
comprising any Borrowing shall be reduced, by payment or prepayment or otherwise, to less than
$10,000,000 (or $5,000,000 in the case of Canadian Advances), such Advances shall automatically
Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of Default under Section
6.01(a) or any Borrowing Base Deficiency, (i) each Eurodollar Rate Advance will automatically, on
the last
41
day of the then existing Interest Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
(f) If Xxxxxx Screen LIBOR01 is unavailable for determining the Eurodollar Rate for any
Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrowers and the Lenders that the interest
rate cannot be determined for such Eurodollar Rate Advances,
(ii) with respect to Eurodollar Rate Advances, each such Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate Advances or to Convert
Advances into Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Company and the Lenders that the circumstances causing such suspension no longer exist.
(g)
Interest Act (Canada). With respect to Advances made to Kodak Canada, whenever a
rate of interest hereunder is calculated on the basis of a year (the “
deemed year”) which
contains fewer days than the actual number of days in the calendar year of calculation, such rate
of interest shall be expressed as a yearly rate for purposes of the Interest Act (Canada) by
multiplying such rate of interest by the actual number of days in the calendar year of calculation
and dividing it by the number of days in the deemed year.
(h)
Nominal Rates; No Deemed Reinvestment. With respect to Advances made to Kodak
Canada, the principle of deemed reinvestment of interest shall not apply to any interest
calculation under this Agreement; all interest payments to be made hereunder shall be paid without
allowance or deduction for reinvestment or otherwise, before and after maturity, default and
judgment. The rates of interest specified in this Agreement are intended to be nominal rates and
not effective rates. Interest calculated hereunder shall be calculated using the nominal rate
method and not the effective rate method of calculation.
(i)
Maximum Interest Rates. (a) Notwithstanding anything to the contrary contained in
any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed
the maximum rate of non-usurious interest permitted by applicable law (the “
Maximum Rate”).
If the Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the applicable Advances or, if it exceeds such
unpaid principal, refunded to the Borrowers, as applicable. In determining whether the interest
contracted for, charged, or received by the Agent or a Lender exceeds the Maximum Rate, such Person
may, to the extent permitted by applicable law, (a) characterize any payment that is not principal
as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the
effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the
total amount of interest throughout the contemplated term of the Obligations hereunder.
(b) Notwithstanding any provision of this Agreement, in no event shall the aggregate
“interest” (as defined in Section 347 of the Criminal Code (Canada)) payable by Kodak Canada under
this Agreement exceed the effective annual rate of interest on the “credit advanced” (as defined in
the Section) under this Agreement lawfully permitted by that Section and, if any payment,
collection or demand pursuant to this Agreement in respect of “interest” (as defined in that
Section) is determined to be contrary to the provisions of that Section, such payment, collection
or demand shall be deemed to have been made by mutual mistake of Kodak Canada and the Lenders and
the amount of such payment or collection shall be refunded to Kodak Canada. For the purposes of
this Agreement, the effective annual rate of interest shall be determined in accordance with
generally accepted actuarial practices and principles over the relevant term and, in the event of a
dispute, a certificate of a Fellow of the Canadian Institute of Actuaries appointed by the Lenders
will be prima facie evidence of such rate.
SECTION 2.09.
Optional Conversion of Advances. Either Borrower may on any Business
Day, upon notice given to the Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Conversion and subject to the provisions of Sections
2.08 and 2.12, Convert all or any portion of the Advances made to it of one Type comprising the
same Borrowing into Advances of the other Type;
42
provided, however, that any Conversion of Eurodollar Rate Advances into Base
Rate Advances shall be made only on the last day of an Interest Period for such Eurodollar Rate
Advances, any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in an amount
not less than the minimum amount specified in Section 2.02(b), no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(b) and each Conversion of
Advances comprising part of the same Borrowing shall be made ratably among the Lenders in
accordance with their Commitments. Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to be Converted, and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the initial Interest
Period for each such Advance. Each notice of Conversion shall be irrevocable and binding on the
Borrower giving such notice.
SECTION 2.10.
Prepayments of Advances. (a)
Optional. Either Borrower may,
upon notice at least two Business Days’ prior to the date of such prepayment, in the case of
Eurodollar Rate Advances, and not later than 11:00 A.M. (New York City time) on the date of such
prepayment, in the case of Base Rate Advances, to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given such Borrower shall, prepay the
outstanding principal amount of the Advances comprising part of the same Borrowing made to it in
whole or in part, together with accrued interest to the date of such prepayment on the principal
amount prepaid;
provided,
however, that (x) each partial prepayment shall be in an
aggregate principal amount of $10,000,000 (or $5,000,000, in the case of the Canadian Revolving
Credit Facility), or an integral multiple of $1,000,000 in excess thereof and (y) in the event of
any such prepayment of a Eurodollar Rate Advance, such Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 9.04(c).
(b)
Mandatory. (i) Each Borrower shall, on each Business Day, if applicable, prepay
(with no corresponding commitment reduction) an aggregate principal amount of the Advances owed by
such Borrower and comprising part of the same Borrowings in an amount equal to the amount by which
(A) the sum of (x) the aggregate principal amount of the Advances owed by such Borrower and then
outstanding plus (y) the aggregate applicable Letter of Credit Obligations then outstanding exceeds
(B) the applicable Line Cap (except as a result of Protective Advances made under Section 2.01(c)
and not outstanding for more than 90 consecutive days);
provided that in respect of any
prepayment under this subsection directly attributable to any adjustment of Reserves, such
prepayment shall be made not later than the Business Day immediately following the date such
adjusted Reserves became effective.
(ii) Each prepayment made pursuant to this Section 2.10(b) shall be made together with
any interest accrued to the date of such prepayment on the principal amounts prepaid and, in
the case of any prepayment of a Eurodollar Rate Advance on a date other than the last day of
an Interest Period or at its maturity, any additional amounts which the applicable Borrower
shall be obligated to reimburse to the Lenders in respect thereof pursuant to Section
9.04(c).
(iii) The Agent shall give prompt notice of any prepayment required under this Section
2.10(b) to Lenders.
SECTION 2.11.
Increased Costs. (a) If, due to either (i) the introduction of or any
change in or in the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority (whether or not having
the force of law), there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or of agreeing to issue or of issuing or
maintaining or participating in Letters of Credit (excluding for purposes of this Section 2.11 any
such increased costs resulting from (x) Taxes or Other Taxes (as to which Section 2.14 shall
govern) and (y) changes in the basis of taxation of overall net income or overall gross income by
the United States or by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision thereof), then the
applicable Borrower shall from time to time, upon demand by such Lender (with a copy of such demand
to the Agent), pay to the Agent for the account of such Lender additional amounts sufficient to
compensate such Lender for such increased cost;
provided,
however, that before
making any such demand, each Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount of, such increased
cost and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender. A
certificate as to the amount of such increased cost, submitted to the Borrowers and the Agent by
such Lender, shall be conclusive and binding for all purposes, absent manifest error.
43
Notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer
Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection
therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for
International settlements, the Basel Committee on Banking Supervision (or any successor or similar
authority) or the United States regulatory authorities, in each case pursuant to Basel III, shall
in each case be deemed to be a “change in law”, regardless of the date enacted, adopted or issued.
(b) If any Lender determines that compliance with any law or regulation or any guideline or
request from any central bank or other governmental authority (whether or not having the force of
law) affects or would affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that the amount of such capital is increased
by or based upon the existence of such Lender’s commitment to lend or to issue or participate in
Letters of Credit hereunder and other commitments of such type or the issuance or maintenance of or
participation in the Letters of Credit (or similar contingent obligations), then, upon demand by
such Lender (with a copy of such demand to the Agent), the Borrowers shall pay to the Agent for the
account of such Lender, from time to time as specified by such Lender, additional amounts
sufficient to compensate such Lender or such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase in capital to be allocable to the
existence of such Lender’s commitment to lend or to issue or participate in Letters of Credit
hereunder or to the issuance or maintenance of or participation in any Letters of Credit. A
certificate as to such amounts submitted to the Borrowers and the Agent by such Lender shall be
conclusive and binding for all purposes, absent manifest error.
SECTION 2.12.
Illegality. Notwithstanding any other provision of this Agreement, if
any Lender shall notify the Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank or other
governmental authority asserts that it is unlawful, for any Lender or its Eurodollar Lending Office
to perform its obligations hereunder to make Eurodollar Rate Advances or to fund or maintain
Eurodollar Rate Advances hereunder, (a) each Eurodollar Rate Advance will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no longer exist;
provided,
however, that before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory restrictions) to
designate a different Eurodollar Lending Office if the making of such a designation would allow
such Lender or its Eurodollar Lending Office to continue to perform its obligations to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate Advances and would not,
in the judgment of such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.13.
Payments and Computations. (a) The Borrowers shall make each payment
hereunder without condition or deduction for any right of counterclaim, defense, recoupment or
set-off, not later than 11:00 A.M. (New York City time) on the day when due in Dollars to the Agent
at the Agent’s Account in same day funds. The Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal, interest, fees or commissions ratably
(other than amounts payable pursuant to Section 2.04, 2.11, 2.14 or 9.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this Agreement. Upon any
Assuming Lender becoming a Lender hereunder as a result of a Commitment Increase pursuant to
Section 2.21, and upon the Agent’s receipt of such Lender’s Assumption Agreement and recording of
the information contained therein in the Register, from and after the applicable Increase Date the
Agent shall treat each Assuming Lender as a Lender under this Agreement and shall make all payments
hereunder and under any Notes issued in connection therewith pro rata among the Lenders taking into
account the interest assumed thereby by the Assuming Lender. Upon its acceptance of an Assignment
and Acceptance and recording of the information contained therein in the Register pursuant to
Section 9.08(c), from and after the effective date specified in such Assignment and Acceptance, the
Agent shall make all payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment and Acceptance shall
make all appropriate adjustments in such payments for periods prior to such effective date directly
between themselves.
44
(b) Each Borrower hereby authorizes each Lender, if and to the extent payment owed to such
Lender is not made when due hereunder or under the Note held by such Lender, to charge from time to
time against any or all of such Borrower’s accounts with such Lender any amount so due.
(c) Except as otherwise required by Section 2.08(g), all computations of interest and of fees
and Letter of Credit commissions shall be made by the Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest or fees or commissions are payable. Each
determination by the Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be due on a day other
than a Business Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of payment of interest, fee or
commission, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from the applicable Borrower prior to the date
on which any payment is due to the Lenders hereunder that such Borrower will not make such payment
in full, the Agent may assume that such Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the extent any
Borrower shall not have so made such payment in full to the Agent, each Lender shall repay to the
Agent forthwith on demand such amount distributed to such Lender together with interest thereon,
for each day from the date such amount is distributed to such Lender until the date such Lender
repays such amount to the Agent, at the Federal Funds Rate or, as regards Canadian Lenders, at the
Bank of Canada Overnight Rate.
(f) Subject to Section 6.04, if the Agent receives funds for application to the Obligations of
the Borrowers under or in respect of the Loan Documents under circumstances for which the Loan
Documents do not specify, or the applicable Borrower does not direct, the Advances to which, or the
manner in which, such funds are to be applied, the Agent may, but shall not be obligated to, elect
to distribute such funds ratably to the outstanding Obligations under the US Revolving Credit
Facility and the Canadian Revolving Credit Facility and within each such Facility, first,
toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto
in accordance with the amounts of interest and fees then due to such parties, and (ii)
second, toward payment of principal and unreimbursed amounts drawn under Letters of Credit
then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of
principal and such Letter of Credit obligations then due to such parties.
SECTION 2.14.
Taxes. (a) Any and all payments by any Loan Party to or for the
account of any Lender or the Agent hereunder or under the Notes shall be made, in accordance with
Section 2.13 or the applicable provisions of such other documents, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions, remittances,
charges or withholdings, and all liabilities with respect thereto,
excluding, in the case
of each Lender and the Agent (i) taxes imposed on its overall net income, and franchise taxes
imposed on it in lieu of net income taxes, by the jurisdiction under the laws of which such Lender
or the Agent (as the case may be) is organized or in which its principal executive office is
located, or any political subdivision thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of net income taxes, by the
jurisdiction of such Lender’s Applicable Lending Office or any political subdivision thereof, and
(ii) any U.S. federal withholding taxes imposed under FATCA that would not have been imposed but
for the failure of the Agent or Lender, as applicable, to satisfy the applicable requirements of
FATCA (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities in respect of payments hereunder or under the Notes being hereinafter referred to as
“
Taxes”). If any Loan Party shall be required by law to deduct, remit or withhold any
Taxes from or in respect of any sum payable hereunder or under any Note to any Lender or the Agent,
(i) the sum payable to such Loan Party shall be increased as may be necessary so that after making
all required deductions remittances or withholdings, (including deductions applicable to additional
sums payable under this Section 2.14) such Lender or the Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made, (ii) such Loan
Party shall make such deductions and (iii) such Loan
45
Party shall pay the full amount deducted, remitted or withheld to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, each Loan Party shall pay any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies that arise from any payment made by
such Loan Party hereunder or under any other Loan Documents or from the execution, delivery or
registration of, performing under, or otherwise with respect to, this Agreement or the other Loan
Documents (hereinafter referred to as “Other Taxes”).
(c) The Loan Parties shall indemnify each Lender and the Agent for and hold it harmless
against the full amount of Taxes or Other Taxes (including, without limitation, taxes of any kind
imposed or asserted by any jurisdiction on amounts payable under this Section 2.14) imposed on or
paid or remitted by such Lender or the Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or the Agent (as the case may be) makes
written demand therefor with appropriate supporting documentation.
(d) Within 30 days after the date of any payment of Taxes, the appropriate Loan Party shall
furnish to the Agent, at its address referred to in Section 9.02, the original or a certified copy
of a receipt evidencing such payment to the extent such a receipt is issued therefor, or other
written proof of payment thereof that is reasonably satisfactory to the Agent. In the case of any
payment hereunder or under the Notes or any other documents to be delivered hereunder by or on
behalf of a Loan Party through an account or branch outside the United States or by or on behalf of
a Loan Party by a payor that is not a United States person, if such Loan Party determines that no
Taxes are payable in respect thereof, such Loan Party shall furnish, or shall cause such payor to
furnish, to the Agent, at such address, an opinion of counsel reasonably acceptable to the Agent
stating that such payment is exempt from Taxes. For purposes of this subsection (d) and subsection
(e), the terms “United States” and “United States person” shall have the meanings
specified in Section 7701 of the Code.
(e) Each Lender organized under the laws of a jurisdiction outside the United States, on or
prior to the date of its execution and delivery of this Agreement on or prior to the designation of
any different Applicable Lending Office and on the date of the Assumption Agreement or the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of each other Lender,
and from time to time thereafter as reasonably requested in writing by the Company (but only so
long as such Lender remains lawfully able to do so), shall provide each of the Agent and the
Company with two original Internal Revenue Service Forms W-8BEN or W-8ECI or (in the case of a
Lender that has certified in writing to the Agent that it is not (i) a “bank” as defined in Section
881(c)(3)(A) of the Code), (ii) a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of any Loan Party or (iii) a controlled foreign corporation related to
any Loan Party (within the meaning of Section 864(d)(4) of the Code), Internal Revenue Service Form
W-8BEN, as appropriate, or any successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or any other Loan Document or, in the case
of a Lender that has certified that it is not a “bank” as described above, certifying that such
Lender is a foreign corporation, partnership, estate or trust. If the form provided by a Lender at
the time such Lender first becomes a party to this Agreement indicates a United States interest
withholding tax rate in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender provides the appropriate forms certifying that a lesser
rate applies, whereupon withholding tax at such lesser rate only shall be considered excluded from
Taxes for periods governed by such form; provided, however, that, if at the date of
the Assignment and Acceptance pursuant to which a Lender assignee becomes a party to this
Agreement, the Lender assignor was entitled to payments under subsection (a) in respect of United
States withholding tax with respect to interest paid at such date, then, to such extent, the term
Taxes shall include (in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any, applicable with
respect to the Lender assignee on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than information necessary to compute
the tax payable and information required on the Effective Date by Internal Revenue Service Form
W-8BEN or W-8ECI or the related certificate described above, that the Lender reasonably considers
to be confidential, the Lender shall give notice thereof to the Company and shall not be obligated
to include in such form or document such confidential information, except directly to a
governmental authority or other Person subject to a reasonable confidentiality agreement. In
addition, upon the written request of the Borrower, any other certification, identification,
information, documentation or other reporting requirement if (i) delivery thereof is required by a
change in the law, regulation,
46
administrative practice or any applicable tax treaty as a precondition to exemption from or a
reduction in the rate of deduction or withholding; (ii) the Agent or Lender, as the case may be, is
legally entitled to make delivery of such item; and (iii) delivery of such item will not result in
material additional costs unless Borrower shall have agreed in writing to indemnify Lender or the
Agent for such costs.
(f) For any period with respect to which a Lender has failed to provide the Company with the
appropriate form, certificate or other document described in Section 2.14(e) (other
than if such failure is due to a change in law, or in the interpretation or application
thereof, occurring subsequent to the date on which a form, certificate or other document originally
was required to be provided, or if such form, certificate or other document otherwise is not
required under subsection (e) above), such Lender shall not be entitled to indemnification under
Section 2.14(a) or (c) with respect to Taxes imposed by the United States of America or Canada by
reason of such failure; provided, however, that should a Lender become subject to
Taxes because of its failure to deliver a form, certificate or other document required hereunder,
the Loan Parties, at such Lender’s expense, shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(g) Any Lender claiming any additional amounts payable pursuant to this Section 2.14 agrees to
use reasonable efforts (consistent with its internal policy and legal and regulatory restrictions)
to change the jurisdiction of its Eurodollar Lending Office if the making of such a change would
avoid the need for, or reduce the amount of, any such additional amounts that may thereafter accrue
and would not, in the judgment of such Lender, be otherwise disadvantageous to such Lender.
(h) If any Lender determines, in its sole discretion, that it has actually and finally
realized, by reason of a refund, deduction or credit of any Taxes paid or reimbursed by a Loan
Party pursuant to subsection (a) or (c) above in respect of payments under this Agreement or the
other Loan Documents, a current monetary benefit that it would otherwise not have obtained, and
that would result in the total payments under this Section 2.14 exceeding the amount needed to make
such Lender whole, such Lender shall pay to the applicable Loan Party, with reasonable promptness
following the date on which it actually realizes such benefit, an amount equal to the lesser of the
amount of such benefit or the amount of such excess, in each case net of all out-of-pocket expenses
in securing such refund, deduction or credit; provided, that the Borrowers, upon the
request of the Agent or such Lender, agrees to repay the amount paid over to any Loan Party to the
Agent or such Lender in the event the Agent or such Lender is required to repay such amount to such
governmental authority.
(i) If any Loan Party determines in good faith that a reasonable basis exists for contesting
the applicability of any Tax or Other Tax, the Agent or the relevant Lender shall cooperate with
such Loan Party, upon the request and at the expense of such Loan Party, in challenging such Tax or
Other Tax. Nothing in this Section 2.14(i) shall require the Agent or any Lender to disclose the
contents of its tax returns or other confidential information to any Person.
SECTION 2.15.
Sharing of Payments, Etc. Without expanding the rights of any Lender
under this Agreement and, except as otherwise expressly provided in Section 6.03, if any
Appropriate Lender shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of the Advances owing to it (other than (x) as
payment of an Advance made by an Issuing Bank pursuant to the first sentence of Section 2.03(c) or
(y) pursuant to Section 2.11, 2.14 or 9.04(c)) in excess of its ratable share (according to the
proportion of (i) the amount of such Advances due and payable to such Lender at such time to (ii)
the aggregate amount of the Advances due and payable at such time to all Appropriate Lenders
hereunder) of payments on account of the Advances obtained by all the Appropriate Lenders, such
Lender shall forthwith purchase from the other Appropriate Lenders such participations in the
Advances owing to them as shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them;
provided,
however, that if all or any portion of
such excess payment is thereafter recovered from such purchasing Lender, such purchase from each
Appropriate Lender shall be rescinded and such Appropriate Lender shall repay to the purchasing
Lender the purchase price to the extent of such Appropriate Lender’s ratable share (according to
the proportion of (i) the purchase price paid to such Lender to (ii) the aggregate purchase price
paid to all Appropriate Lenders) of such recovery together with an amount equal to such Appropriate
Lender’s ratable share (according to the proportion of (i) the amount of such Lender’s required
repayment to (ii) the total amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total amount so recovered;
provided further that, so long as the Advances shall not have become due and
payable pursuant to Section 6.01, any excess payment received by any Appropriate Lender shall be
shared on a pro rata basis only with
47
SECTION 2.16.
Evidence of Debt. (a) Each Lender shall maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Advance owing to such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to time hereunder in respect of
Advances. Each Borrower agrees that upon notice by any Lender to such Borrower (with a copy of
such notice to the Agent) to the effect that a Note is required or appropriate in order for such
Lender to evidence (whether for purposes of pledge, enforcement or otherwise) the Advances owing
to, or to be made by, such Lender, such Borrower shall promptly execute and deliver to such Lender
a Note, as applicable, properly completed, payable to the order of such Lender in a principal
amount up to the Revolving Credit Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section 9.08(e) shall include a control
account, and a subsidiary account for each Lender, in which accounts (taken together) shall be
recorded (i) the date and amount of each Borrowing made hereunder, the Type of Advances comprising
such Borrowing and, if appropriate, the Interest Period applicable thereto, (ii) the terms of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it, (iii) the
amount of any principal or interest due and payable or to become due and payable from each Borrower
to each Lender hereunder and (iv) the amount of any sum received by the Agent from each Borrower
hereunder and each Lender’s share thereof.
(c) Entries made in good faith by the Agent in the Register pursuant to subsection (b) above,
and by each Lender in its account or accounts pursuant to subsection (a) above, shall be
prima facie evidence of the amount of principal and interest due and payable or to
become due and payable from each Borrower to, in the case of the Register, each Lender and, in the
case of such account or accounts, such Lender, under this Agreement, absent manifest error;
provided, however, that the failure of the Agent or such Lender to make an entry,
or any finding that an entry is incorrect, in the Register or such account or accounts shall not
limit or otherwise affect the obligations of any Borrower under this Agreement with respect to
Advances made and not repaid.
SECTION 2.17.
Use of Proceeds. The proceeds of the Advances shall be available (and
each Borrower agrees that it shall use such proceeds) solely for general corporate purposes of the
Company and its Subsidiaries,
provided,
however, that no proceeds from the
Revolving Credit Facility may be used to directly or indirectly finance the repayment, repurchase
or other satisfaction of the Specified Indebtedness, unless after giving pro forma effect thereto,
Excess Availability shall be at least 20% of the Revolving Credit Facility.
(a) Within 60 days after the Effective Date (or such later date as the Agent may specify in
its sole discretion), and at all times thereafter, the Loan Parties shall enter into and maintain
blocked account agreements (each, a “Blocked Account Agreement”), satisfactory in form and
substance to the Agent in its reasonable discretion, with respect to each Concentration Account
(other than any Concentration Account maintained with the Agent).
(b) Each Blocked Account Agreement or such other account control agreement, if applicable, for
each Concentration Account shall require, during the continuance of a Cash Control Trigger Event
(and delivery of notice thereof from the Agent), the ACH or wire transfer on each Business Day of
all ledger or available, as applicable, cash receipts held in the Concentration Account to a
concentration account maintained by the Agent (an “Agent Sweep Account”) located in the
United States (in respect of Deposit Accounts of the Company and the US Subsidiary Guarantors) or
in Canada (in respect of Deposit Accounts of Kodak Canada and the Canadian Subsidiary Guarantors).
48
(c) If (i) at any time during the continuance of a Cash Control Trigger Event, any cash or
Cash Equivalents owned by a Loan Party are deposited in any account (other than an Excluded
Account), or held or invested in any manner (other than (x) in a Concentration Account that is
subject to the Blocked Account Agreement, (y) in a Concentration Account that is maintained with
the Agent or (z) a Deposit Account which is swept daily to a Concentration Account subject to a
Blocked Account Agreement or maintained with the Agent), or (ii) at any time, a Concentration
Account shall cease to be subject to a Blocked Account Agreement or maintained with the Agent, the
applicable Loan Party shall immediately furnish the Agent with written notice thereof and the Agent
may require such Loan Party to close such account and have any such funds transferred to a
Concentration Account which is subject to a Blocked Account Agreement or maintained with the Agent.
(d) A Loan Party may close any Deposit Account or a Concentration Account, maintain existing
Deposit Accounts or Concentration Accounts and/or open new Deposit Accounts or Concentration
Accounts, subject to the execution and delivery to the Agent of appropriate Blocked Account
Agreements with respect to each Concentration Account (except with respect to any Concentration
Account maintained with the Agent) consistent with the provisions of this Section 2.18 and
otherwise reasonably satisfactory to the Agent. The applicable Loan Party shall furnish the Agent
with prior written notice of its intention to open or close a Concentration Account and the Agent
shall promptly notify such Loan Party as to whether the Agent shall require a Blocked Account
Agreement with the Person with whom such account will be maintained.
(e) Each Agent Sweep Account shall at all times be under the sole dominion and control of the
Agent. Each Loan Party hereby acknowledges and agrees that (i) it has no right of withdrawal from
the Agent Sweep Account, (ii) the funds on deposit in an Agent Sweep Account shall at all times
continue to be collateral security for all of the Secured Obligations, and (iii) the funds on
deposit in an Agent Sweep Account shall be applied as provided in Section 2.18(h) of this Agreement
and in the US Security Agreement. In the event that, notwithstanding the provisions of this
Section 2.18, during the continuance of a Cash Control Trigger Event, a Loan Party receives or
otherwise has dominion and control of any such proceeds or collections, such proceeds and
collections shall be held in trust by such Loan Party for the Agent, shall not be commingled with
any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall
promptly be deposited into a Concentration Account or dealt with in such other fashion as such Loan
Party may be instructed by the Agent.
(f) Any amounts remaining in an Agent Sweep Account (i) at any time when a Cash Control
Trigger Event is no longer continuing for purposes of this Agreement or (ii) after application of
amounts received in such Agent Sweep Account as set forth in subsection (h) below, shall be
remitted to the primary Concentration Account of the Company maintained with the Agent.
(g) The Agent shall promptly (but in any event within two (2) Business Days) furnish written
notice to each Person with whom a Concentration Account is maintained when a Cash Control Trigger
Event is no longer continuing for purposes of this Agreement.
(h) (i) Any amounts received in an Agent Sweep Account in the United States shall be applied
to the payment (without a corresponding reduction of Commitments) of all of the Advances made to
the Company (whether then due or not) and to the payment of all of the other Obligations under the
Loan Documents of the Company and the US Subsidiary Guarantors (other than contingent obligations)
(whether then due or not) in accordance with Section 6.04 (with all Advances deemed due for
purposes thereof); (ii) any amounts received in an Agent Sweep Account in Canada shall be applied
to the payment (without a corresponding reduction of Commitments) of all of the Advances made to
Kodak Canada (whether then due or not) and to the payment of all of the other Obligations under the
Loan Documents of Kodak Canada and the Canadian Subsidiary Guarantors (other than contingent
obligations) (whether then due or not) in accordance with Section 6.04 (with all Advances deemed
due for purposes thereof); and (iii) all payments to be made in accordance with this subsection (h)
in respect of Eurodollar Rate Advances shall be made on the last day of the applicable Interest
Period therefor, and shall be held in the applicable Agent Sweep Account pending such payment.
(i) The following shall apply to deposits and payments under and pursuant to this Agreement:
49
(i) funds shall be deemed to have been deposited to an Agent Sweep Account on the
Business Day on which deposited, provided that such deposit is available to the Agent by
2:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by
2:00 p.m. on that Business Day);
(ii) funds paid to the Agent, other than by deposit to an Agent Sweep Account, shall be
deemed to have been received on the Business Day when they are good and collected funds,
provided that such payment is available to the Agent by 2:00 p.m. on that Business Day
(except that if the Obligations are being paid in full, by 2:00 p.m. on that Business Day);
and
(iii) if a deposit to an Agent Sweep Account or payment is not available to the Agent
until after 2:00 p.m. on a Business Day, such deposit or payment shall be deemed to have
been made at 9:00 a.m. on the then next Business Day.
SECTION 2.19.
Defaulting Lenders. (a) In the event that, at any time, (i) any Lender
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Advance to a
Borrower and (iii) such Borrower shall be required to make any payment hereunder or under any other
Loan Document to or for the account of such Defaulting Lender, then such Borrower may, to the
fullest extent permitted by applicable law, set off and otherwise apply the Obligation of such
Borrower to make such payment to or for the account of such Defaulting Lender against the
obligation of such Defaulting Lender to make such Defaulted Advance. In the event that, on any
date, a Borrower shall so set off and otherwise apply its obligation to make any such payment
against the obligation of such Defaulting Lender to make any such Defaulted Advance on or prior to
such date, the amount so set off and otherwise applied by such Borrower shall constitute for all
purposes of this Agreement and the other Loan Documents an Advance by such Defaulting Lender made
on the date under the Revolving Credit Facility pursuant to which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01. Such Advance shall be considered,
for all purposes of this Agreement, to comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made pursuant to Section 2.01, even if the
other Advances comprising such Borrowing shall be Eurodollar Rate Advances on the date such Advance
is deemed to be made pursuant to this subsection (a). A Borrower shall notify the Agent at any
time such Borrower exercises its right of set-off pursuant to this subsection (a) and shall set
forth in such notice (A) the name of the Defaulting Lender and the Defaulted Advance required to be
made by such Defaulting Lender and (B) the amount set off and otherwise applied in respect of such
Defaulted Advance pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by a Borrower to or for the account of such Defaulting Lender which is paid by such
Borrower, after giving effect to the amount set off and otherwise applied by such Borrower pursuant
to this subsection (a), shall be applied by the Agent as specified in subsection (b) or (c) of this
Section 2.19.
(b) In the event that, at any time, (i) any Lender shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Amount to the Agent or other applicable Lenders and (iii)
a Borrower shall make any payment hereunder or under any other Loan Document to the Agent for the
account of such Defaulting Lender, then the Agent may, on its behalf or on behalf of such other
Lenders and to the fullest extent permitted by applicable law, apply at such time the amount so
paid by such Borrower to or for the account of such Defaulting Lender to the payment of each such
Defaulted Amount to the extent required to pay such Defaulted Amount. In the event that the Agent
shall so apply any such amount to the payment of any such Defaulted Amount on any date, the amount
so applied by the Agent shall constitute for all purposes of this Agreement and the other Loan
Documents payment, to such extent, of such Defaulted Amount on such date. Any such amount so
applied by the Agent shall be retained by the Agent or distributed by the Agent to such other
Lenders, ratably in accordance with the respective portions of such Defaulted Amounts payable at
such time to the Agent and such other Lenders and, if the amount of such payment made by a Borrower
shall at such time be insufficient to pay all Defaulted Amounts owing at such time to the Agent and
the other Lenders, in the following order of priority:
(i) first, to the Agent for any Defaulted Amount then owing to the Agent in its
capacity as Agent; and
(ii) second, to the Issuing Banks for any Defaulted Amounts then owing to them, in
their capacities as such, ratably in accordance with such respective Defaulted Amounts then
owing to the Issuing Banks; and
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(iii) third, to any other applicable Lenders for any Defaulted Amounts then owing to
such other Lenders, ratably in accordance with such respective Defaulted Amounts then owing
to such other Lenders.
Any portion of such amount paid by a Borrower for the account of such Defaulting Lender remaining,
after giving effect to the amount applied by the Agent pursuant to this subsection (b), shall be
applied by the Agent as specified in subsection (c) of this Section 2.19.
(c) In the event that, at any time, (i) any Lender shall be a Defaulting Lender, (ii) such
Defaulting Lender shall not owe a Defaulted Advance or a Defaulted Amount and (iii) a Borrower, the
Agent or any other Lender shall be required to pay or distribute any amount hereunder or under any
other Loan Document to or for the account of such Defaulting Lender, then such Borrower or such
other Lender shall pay such amount to the Agent to be held by the Agent, to the fullest extent
permitted by applicable law, in escrow or the Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds held by the Agent in
escrow under this subsection (c) shall be deposited by the Agent in an account with the Agent, in
the name and under the control of the Agent, but subject to the provisions of this subsection (c).
The terms applicable to such account, including the rate of interest payable with respect to the
credit balance of such account from time to time, shall be the Agent’s standard terms applicable to
escrow accounts maintained with it. Any interest credited to such account from time to time shall
be held by the Agent in escrow under, and applied by the Agent from time to time in accordance with
the provisions of, this subsection (c). The Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the extent necessary to make
any Advances required to be made by such Defaulting Lender and to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to the Agent or any other Lender, as
and when such Advances or amounts are required to be made or paid and, if the amount so held in
escrow shall at any time be insufficient to make and pay all such Advances and amounts required to
be made or paid at such time, in the following order of priority:
(i) first, to the Agent for any amount then due and payable by such Defaulting Lender
to the Agent hereunder in its capacity as Agent;
(ii) second, to the Issuing Banks for any amounts then due and payable to them
hereunder, in their capacities as such, by such Defaulting Lender, ratably in accordance
with such respective amounts then due and payable to the Issuing Banks;
(iii) third, to any other Lenders for any amount then due and payable by such
Defaulting Lender to such other Lenders hereunder, ratably in accordance with such
respective amounts then due and payable to such other Lenders; and
(iv) fourth, to the Company or Kodak Canada, as applicable for any Advance then
required to be made by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender that is a Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Agent in escrow at such time with respect to such Lender
shall be distributed by the Agent to such Lender and applied by such Lender to the Obligations
owing to such Lender at such time under this Agreement and the other Loan Documents ratably in
accordance with the respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this Section 2.19 are in
addition to other rights and remedies that such Borrowers may have against such Defaulting Lender
with respect to any Defaulted Advance and that the Agent or any Lender may have against such
Defaulting Lender with respect to any Defaulted Amount.
(e) Anything contained herein to the contrary notwithstanding, in the event that (i) any
Lender shall become a Defaulting Lender and (ii) such Defaulting Lender shall fail to cure the
default as a result of which it has become a Defaulting Lender within five Business Days after the
Company’s request that it cure such default, the Company or Kodak Canada, as applicable shall have
the right (but not the obligation) to repay such Defaulting Lender in an amount equal to the
principal of, and all accrued interest on, all outstanding Advances
51
owing to such Lender, together with all other amounts due and payable to such Lender under the
Loan Documents, and such Lender’s Commitment hereunder shall be terminated immediately thereafter.
(f) If any Lender becomes, and during the period it remains, a Defaulting Lender or a
Potential Defaulting Lender, for purposes of computing the amount of the obligation of each
non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit pursuant to
Sections 2.03, the “Ratable Share” of each non-Defaulting Lender under the applicable Revolving
Credit Facility shall be computed without giving effect to the Letter of Credit Commitment of that
Defaulting Lender; provided, that: (i) each such reallocation shall be given effect only
if, at the date the applicable Lender becomes a Defaulting Lender, no Default or Event of Default
exists; and (ii) the aggregate obligation of each non-Defaulting Lender to acquire, refinance or
fund participations in Letters of Credit under the applicable Revolving Credit Facility shall not
exceed the positive difference, if any, of (1) the applicable Revolving Credit Commitment of that
non-Defaulting Lender minus (2) the aggregate Advances of that Lender under such Revolving Credit
Facility.
(g) Each Issuing Bank, may, by notice to the Company and such Defaulting Lender or Potential
Defaulting Lender through the Agent, require the applicable Borrower to Cash Collateralize the
obligations of such Borrower to such Issuing Bank in respect of such Letter of Credit in amount at
least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of
such Defaulting Lender or such Potential Defaulting Lender in respect thereof, or to make other
arrangements satisfactory to the Agent, and to the applicable Issuing Bank, in their sole
discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential
Defaulting Lender.
(h) If either Borrower Cash Collateralizes any portion of a Defaulting Lender’s or a Potential
Defaulting Lender’s exposure with respect to an outstanding Letter of Credit, no Borrower shall be
required to pay any fees under Section 2.04(b)(i) to any Defaulting Lender or Potential Defaulting
Lender that is a Lender at any time when the Letter of Credit is so Cash Collateralized.
SECTION 2.20.
Replacement of Certain Lenders. In the event a Lender (“
Affected
Lender”) shall have (i) become a Defaulting Lender under Section 2.19, (ii) requested
compensation from the Borrowers under Section 2.14 with respect to Taxes or Other Taxes or with
respect to increased costs or capital or under Section 2.11 or other additional costs incurred by
such Lender which, in any case, are not being incurred generally by the other Lenders, (iii) has
not agreed to any consent, waiver or amendment that requires the agreement of all Lenders or all
affected Lenders in accordance with the terms of Section 9.01 and as to which the Required Lenders
have agreed, or (iv) delivered a notice pursuant to Section 2.12 claiming that such Lender is
unable to extend Eurodollar Rate Advances to the Borrowers for reasons not generally applicable to
the other Lenders, then, in any case, the Company or the Agent may make written demand on such
Affected Lender (with a copy to the Agent in the case of a demand by the Company and a copy to the
Company in the case of a demand by the Agent) for the Affected Lender to assign at par, and such
Affected Lender shall use commercially reasonable efforts to assign pursuant to one or more duly
executed Assignments and Acceptances five Business Days after the date of such demand, to one or
more financial institutions that comply with the provisions of Section 9.08 which the Company or
the Agent, as the case may be, shall have engaged for such purpose (“
Replacement Lender”),
all of such Affected Lender’s rights and obligations under this Agreement and the other Loan
Documents (including, without limitation, its Commitment, all Advances owing to it, all of its
participation interests in existing Letters of Credit, and its obligation to participate in
additional Letters of Credit hereunder) in accordance with Section 9.08. The Agent is authorized
to execute one or more of such Assignments and Acceptances as attorney-in-fact for any Affected
Lender failing to execute and deliver the same within 5 Business Days after the date of such
demand. Further, with respect to such assignment, the Affected Lender shall have concurrently
received, in cash, all amounts due and owing to the Affected Lender hereunder or under any other
Loan Document;
provided that upon such Affected Lender’s replacement, such Affected Lender
shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections
2.11, 2.14 and 9.04, as well as to any fees accrued for its account hereunder and not yet paid, and
shall continue to be obligated under Section 8.05 with respect to losses, obligations, liabilities,
damages, penalties, actions, judgments, costs, expenses or disbursements for matters which occurred
prior to the date the Affected Lender is replaced.
SECTION 2.21.
Increase in the Aggregate Commitments. (a) The Borrowers may, at any
time, by notice to the Agent, request that either the US Revolving Credit Facility or the Canadian
Revolving Credit Facility be increased by an amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof (each a
52
“Commitment Increase”) to be effective as of a date that is at least 90 days
prior to the Termination Date (the “Increase Date”) as specified in the related notice to
the Agent; provided, however that (i) in no event shall the aggregate amount of all
such Commitment Increases exceed $100,000,000 less the amount of obligations under Secured
Agreements in excess of $100,000,000 or shall the aggregate amount of such Commitment Increases
under the Canadian Revolving Credit Facility exceed $20,000,000 and (ii) on the date of any request
by the Company for a Commitment Increase and on the related Increase Date, the representations and
warranties of each Borrower and each Significant Loan Party contained in each Loan Document to
which it is a party are correct on and as of such date, as though made on and as of such date, and
no event shall have occurred and be is continuing that constitutes a Default.
(b) The Agent shall promptly notify such Lenders as the Company may identify for a Commitment
Increase, which notice shall include (i) the proposed amount of such requested Commitment Increase,
(ii) whether such requested Commitment Increase relates to the US Revolving Credit Facility and/or
the Canadian Revolving Credit Facility, (iii) the proposed Increase Date and (iv) the date by which
Lenders wishing to participate in the Commitment Increase must commit to an increase in the amount
of their respective Revolving Credit Commitments under the applicable Revolving Credit Facility
(the “Commitment Date”). Each applicable Lender that is willing to participate in such
requested Commitment Increase (each an “Increasing Lender”) shall, in its sole discretion,
give written notice to the Agent on or prior to the Commitment Date of the amount by which it is
willing to increase its Revolving Credit Commitment under the Revolving Credit Facility. If the
applicable Lenders notify the Agent that they are willing to so increase their respective Revolving
Credit Commitments by an aggregate amount that exceeds the amount of the requested Commitment
Increase, the requested Commitment Increase shall be allocated among such Lenders willing to
participate therein in such amounts as are agreed between the Company and the Agent.
(c) Promptly following each Commitment Date, the Agent shall notify the Company as to the
amount, if any, by which the Lenders are willing to participate in the requested Commitment
Increase. If the aggregate amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested Commitment Increase,
then the Company may extend offers to one or more Eligible Assignees to participate in any portion
of the requested Commitment Increase that has not been committed to by the Lenders as of the
applicable Commitment Date; provided, however, that the Revolving Credit Commitment
of each such Eligible Assignee shall be in an amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
(d) On each Increase Date, each Eligible Assignee that accepts an offer to participate in a
requested Commitment Increase in accordance with Section 2.21(b) (an “Assuming Lender”)
shall become a Lender party to this Agreement as of such Increase Date and the Revolving Credit
Commitment under the Revolving Credit Facility of each Increasing Lender for such requested
Commitment Increase shall be so increased by such amount (or by the amount allocated to such Lender
pursuant to the last sentence of Section 2.21(b)) as of such Increase Date; provided,
however, that the Agent shall have received on or before such Increase Date the following,
each dated such date:
(i) (A) certified copies of resolutions of the Board of Directors of the applicable
Borrower or the Executive Committee of such Board approving the Commitment Increase and the
corresponding modifications to this Agreement and (B) an opinion of counsel for the
applicable Borrower (which may be in-house counsel), in form and substance reasonably
satisfactory to the Agent;
(ii) an assumption agreement from each Assuming Lender, if any, in form and substance
satisfactory to the Company and the Agent (each an “Assumption Agreement”), duly
executed by such Eligible Assignee, the Agent and the Company; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its
Revolving Credit Commitment under the Revolving Credit Facility in a writing satisfactory to
the Company and the Agent.
53
On each Increase Date, upon fulfillment of the conditions set forth in the immediately preceding
sentence of this Section 2.21(d), the Agent shall notify the Lenders (including, without
limitation, each Assuming Lender) and the Borrowers, on or before 1:00 P.M. (New York City time),
by telecopier, of the occurrence of the Commitment Increase to be effected on such Increase Date
and shall record in the Register the relevant information with respect to each Increasing Lender
and each Assuming Lender on such date. Each Increasing Lender and each Assuming Lender shall,
before 2:00 P.M. (New York City time) on the Increase Date, make available for the account of its
Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, in the case of
such Assuming Lender, an amount equal to such Assuming Lender’s ratable portion of the Borrowings
under the applicable Revolving Credit Facility then outstanding (calculated based on its Revolving
Credit Commitment as a percentage of the aggregate Revolving Credit Commitments under the
applicable Revolving Credit Facility outstanding after giving effect to the relevant Commitment
Increase) and, in the case of such Increasing Lender, an amount equal to the excess of (i) such
Increasing Lender’s ratable portion of the Borrowings under the applicable Revolving Credit
Facility then outstanding (calculated based on its Revolving Credit Commitment as a percentage of
the aggregate Revolving Credit Commitments under the applicable Revolving Credit Facility
outstanding after giving effect to the relevant Commitment Increase) over (ii) such Increasing
Lender’s ratable portion of the Borrowings under the applicable Revolving Credit Facility then
outstanding (calculated based on its Revolving Credit Commitment (without giving effect to the
relevant Commitment Increase) as a percentage of the aggregate Revolving Credit Commitments under
the applicable Revolving Credit Facility (without giving effect to the relevant Commitment
Increase). After the Agent’s receipt of such funds from each such Increasing Lender and each such
Assuming Lender, the Agent will promptly thereafter cause to be distributed like funds to the other
applicable Lenders for the account of their respective Applicable Lending Offices in an amount to
each other applicable Lender such that the aggregate amount of the outstanding Advances owing to
each applicable Lender after giving effect to such distribution equals such Lender’s ratable
portion of the Borrowings under the applicable Revolving Credit Facility then outstanding
(calculated based on its Revolving Credit Commitment as a percentage of the aggregate Revolving
Credit Commitments under the applicable Revolving Credit Facility outstanding after giving effect
to the relevant Commitment Increase).
(e) In connection with any Commitment Increase, this Agreement and the other Loan Documents
may be amended in a writing (which may be executed and delivered by the Borrowers and the Agent) to
reflect any technical changes necessary to give effect to such increase in accordance with its
terms as set forth herein.
SECTION 2.22.
Failure to Satisfy Conditions Precedent. If any Lender makes available to
the Agent funds for any Advance to be made by such Lender as provided in the foregoing provisions
of this Article II, and such funds are not made available to the applicable Borrower by the Agent
because the conditions to the applicable Advance set forth in Article III are not satisfied or
waived in accordance with the terms hereof, the Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
SECTION 2.23.
Obligations of Lenders Several. The obligations of the Lenders hereunder to
make Advances, to fund participations in Letters of Credit and to make payments are several and not
joint. The failure of any Lender to make any Advance, to fund any such participation or to make
any payment on any date required hereunder shall not relieve any other Lender of its corresponding
obligation to do so on such date, and no Lender shall be responsible for the failure of any other
Lender to so make its Advance, to purchase its participation or to make its payment hereunder
under.
ARTICLE III
SECTION 3.01.
Conditions Precedent to Effectiveness. The Existing Credit Agreement shall
be amended and restated in its entirety as set forth herein upon the satisfaction of the following
conditions precedent:
(a) The Agent shall have received executed counterparts to this Agreement from each
Borrower, each Guarantor and each Lender.
54
(b) The Agent shall have received executed counterparts to the Supplement, Notice and
Joinder to Intercreditor Agreement from each party thereto.
(c) The Agent shall have received the following, each dated as of the Effective Date
and in form and substance satisfactory to the Agent:
(i) Notes to the order of the Lenders to the extent requested by any Lender
pursuant to Section 2.16.
(ii) Certified copies of the resolutions of the Board of Directors, or
Executive or Finance Committee of the Board of Directors, of each Loan Party
approving each Loan Document to which it is a party, and of all documents evidencing
other necessary corporate action and governmental approvals, if any, with respect to
each Loan Document to which it is a party.
(iii) A certificate of the Secretary or an Assistant Secretary of each Loan
Party certifying the names and true signatures of the officers of such Loan Party
authorized to sign each Loan Document to which it is or is to be a party and the
other documents to be delivered hereunder and thereunder.
(iv) Such certificates of good standing from the applicable secretary of state
or similar official of the jurisdiction of organization, formation documents and
organizational documents of each Loan Party as the Agent may reasonably require.
(v) A solvency certificate, determined immediately after giving effect to the
transactions contemplated hereby, from the chief financial officer of the Company,
in form and substance satisfactory to the Agent.
(vi) Copies of a recent Lien and judgment search in each jurisdiction
reasonably requested by the Agent with respect to the Loan Parties.
(vii) A certificate from the Responsible Officer of the Company as to the
matters set forth in Sections 3.01(e)(ii) and 3.01(i).
(viii) A favorable opinion of the general counsel of the Loan Parties, in form
and substance satisfactory to the Agent and Required Lenders.
(ix) A favorable opinion of Osler, Xxxxxx & Harcourt LLP, Canadian counsel to
the Loan Parties, in form and substance satisfactory to the Agent and Required
Lenders.
(x) A favorable opinion of Xxxxx Peabody LLP, US counsel for the Loan Parties,
in form and substance satisfactory to the Agent and Required Lenders.
(xi) An amendment to, or amendment and restatement of, the US Security
Agreement, duly executed by the Company and each Person that is a US Subsidiary
Guarantor on the Effective Date, together with certificates, if any, representing
the Initial Pledged Equity referred to therein accompanied by undated stock powers
executed in blank and instruments evidencing the Initial Pledged Debt referred to
therein, indorsed in blank.
(xii) An amendment to, or amendment and restatement of, the Canadian Security
Agreement, duly executed by Kodak Canada and each Canadian Subsidiary Guarantor
listed on Part B of Schedule II hereto, together with certificates, if any,
representing the Initial Pledged Equity referred to therein accompanied by undated
stock powers executed in blank and instruments evidencing the Initial Pledged Debt
referred to therein, indorsed in blank.
(xiii) An amendment to, or amendment and restatement of, each Intellectual
Property Security Agreement covering the registered copyrights listed on Schedule IV
to the US Security
55
Agreement, duly executed by the Company and each Person that is a US Subsidiary
Guarantor on the Effective Date.
(d) The Agent and the Co-Collateral Agents shall have received, in form and substance
reasonably satisfactory to the Agent and the Co-Collateral Agents, field examinations and
asset appraisals in respect of the Collateral (other than in respect of equipment, which may
be delivered following the Effective Date, subject to the restrictions on availability set
forth herein), it being understood that the report of the field examination conducted, and
the inventory appraisal report prepared, on behalf of the agent under the Existing Credit
Agreement, each dated in March 2011, each as delivered to the Agent and Co-Collateral Agents
prior to the date hereof, are in form and substance reasonably satisfactory to the Agent and
the Co-Collateral Agents.
(e) The Agent and the Co-Collateral Agents shall have received (i) a Borrowing Base
Certificate prepared as of the last day of the last month ended at least 20 days prior to
Effective Date and (ii) reasonably satisfactory evidence that, on the Effective Date, after
giving effect to the effectiveness of this Agreement and to the other transactions
contemplated hereby, Excess Availability shall be not less than $100,000,000.
(f) All documents and instruments required to create and perfect the Agent’s first
priority security interest in and Lien on the Collateral in the US and Canada (free and
clear of all other Liens other than Permitted Collateral Liens and subject to exceptions
permitted by Section 5.02(a)) shall have been executed and delivered and, if applicable, be
in proper form for filing; provided that the Loan Parties shall not be required to
take any action to perfect the Agent’s Liens in Collateral under the laws of the province of
Quebec until such time as the fair market value of the Collateral with respect to which such
actions are required exceeds $5,000,000, at which time the Loan Parties shall promptly take
such actions to the extent required by Section 5.01(j).
(g) After giving effect to the effectiveness of this Agreement, the Company and its
Subsidiaries shall have outstanding no Debt or preferred stock other than (a) the loans and
other extensions of credit under the Revolving Credit Facility and (b) Debt permitted by
Section 5.02(d).
(h) The Company shall have paid all fees of the Agent, the Arrangers and the Lenders
accrued and payable on or prior to the Effective Date, and all such expenses of the Agent,
including the accrued fees and expenses of counsel to the Agent.
(i) (i) the representations and warranties of each Borrower and each Significant Loan
Party contained in each Loan Document to which it is a party shall be correct on and as of
the Effective Date, before and after giving effect to the effectiveness of this Agreement
and the transactions contemplated hereby, as though made on and as of such date and (ii) no
event shall have occurred and be continuing, or would result from the effectiveness of this
Agreement or the transactions contemplated hereby, that would constitute a Default.
(j) The Lenders shall have received all documentation and other information required by
bank regulatory authorities under applicable “know-your-customer” and anti-money laundering
rules and regulations, including the PATRIOT Act.
Upon the effectiveness of this Agreement, (a) the terms and condition of the Existing Credit
Agreement shall be amended as set forth herein and, as so amended, shall be restated in their
entirety and (b) Bank of America will succeed as Agent hereunder in accordance with Section 8.12.
This Agreement shall not in any way release or impair the rights, duties, obligations, guarantees
or Liens, security interests and hypothecs created pursuant to the Existing Credit Agreement or any
other Loan Document (as defined therein) or affect the relative priorities thereof, in each case to
the extent in force and effect thereunder as of the effective date of this Agreement, except as
specifically modified hereby or by documents, instruments and agreements executed and delivered in
connection herewith, and all of such rights, duties, obligations, guarantees, Liens, security
interests and hypothecs are assumed, ratified and affirmed by each Borrower and each other Loan
Party. The guarantees, Liens, security interests and hypothecs granted in favor of the Agent
pursuant to the Collateral Documents to which each of the Loan Parties is a party shall continue
without any diminution thereof and shall remain in full force and effect on and after the
56
effectiveness of this Agreement. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to secure the payment
of all Obligations of the Loan Parties under the Loan Documents to the extent provided in the
Collateral Documents. It is the intent of the parties hereto that this Agreement not constitute a
novation of the obligations and liabilities existing under the Existing Credit Agreement or
evidence repayment of any such obligations and liabilities and that this Agreement amends and
restates in its entirety the Existing Credit Agreement and re-evidences the obligations of the
Borrowers and the other Loan Parties outstanding thereunder.
SECTION 3.02.
Conditions Precedent to Each Borrowing and Issuance. The obligation of
each Lender to make an Advance (other than an Advance made by any Issuing Bank pursuant to Section
2.03(c) or any Lender pursuant to Section 2.03(c)) on the occasion of each Borrowing and the
obligation of each Issuing Bank to issue a Letter of Credit shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the date of such Borrowing or such
Issuance the following statements shall be true (and each of the giving of the applicable Notice of
Borrowing, Notice of Issuance and the acceptance by the applicable Borrower of the proceeds of such
Borrowing or such Issuance shall constitute a representation and warranty by the Company that on
the date of such Borrowing or such Issuance such statements are true):
(a) the representations and warranties of each Borrower and each Significant Loan Party
contained in each Loan Document to which it is a party are correct on and as of such date,
before and after giving effect to such Borrowing or such Issuance and to the application of
the proceeds therefrom, as though made on and as of such date,
(b) no event has occurred and is continuing, or would result from such Borrowing or
such Issuance or from the application of the proceeds therefrom, that constitutes a Default;
(c) no Borrowing Base Deficiency will exist after giving effect to such Borrowing,
issuance or renewal and to the application of the proceeds therefrom; and
(d) if as a result of such Borrowing or such Issuance, Excess Availability would be
below the greater of (i) $40,000,000 and (ii) 12.5% of the sum of the Canadian Revolving
Credit Facility plus the US Revolving Credit Facility, the Company shall have demonstrated
pro forma compliance with the Fixed Charge Coverage Ratio.
SECTION 3.03.
Additional Conditions to Issuances. In addition to the other conditions
precedent herein set forth, if any Lender becomes, and during the period it remains, a Defaulting
Lender or a Potential Defaulting Lender, no Issuing Bank will be required to issue any Letter of
Credit or to amend any outstanding Letter of Credit to increase the face amount thereof, alter the
drawing terms thereunder or extend the expiry date thereof, unless such Issuing Bank is satisfied
that any exposure that would result from a Defaulted Advance of such Defaulting Lender or Potential
Defaulting Lender is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders
or by Cash Collateralization or a combination thereof satisfactory to such Issuing Bank.
SECTION 3.04.
Determinations Under this Agreement. For purposes of determining
compliance with the conditions specified in this Agreement, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with each document or other matter required
hereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an
officer of the Agent responsible for the transactions contemplated by this Agreement shall have
received notice from such Lender prior to the date that the Company, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto. The Agent shall
promptly notify the Lenders of the occurrence of the Effective Date.
SECTION 3.05.
Effective Date. (a) Upon the effectiveness of this Agreement: (i) each
US Lender (each, a “
U.S. Assignor”) will automatically and without further act be deemed to
have assigned to each other U.S. Lender (each, a “
U.S. Assignee”), and each such U.S.
Assignee will automatically and without further act be deemed to have assumed, a portion of such
U.S. Assignor’s participations under this Agreement in outstanding U.S. Letters of Credit such
that, after giving effect to each such deemed assignment and assumption of participations, the
percentage of the aggregate outstanding participations under this Agreement in U.S. Letters of
Credit held by each U.S. Lender will equal the percentage of the aggregate U.S. Revolving Credit
Commitments of
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all U.S. Lenders represented by such U.S. Lender’s U.S. Revolving Credit Commitment; and (ii)
to the extent that any “Lender” (as defined in the Existing Credit Agreement) (an “Existing
Lender”) shall not be a Lender upon effectiveness of this Agreement (each such Lender, a
“Non-Continuing Lender”), such Non-Continuing Lender shall be replaced by (and the
Commitments of such Non-Continuing Lender shall be assigned to and assumed by) one or more Existing
Lenders or additional Lenders and each such replacement and assignment and assumption shall be
deemed to be effected pursuant to Section 2.20 of the Existing Credit Agreement automatically and
without further action by any Person and notwithstanding anything contained in Section 2.20 of the
Existing Credit Agreement to the contrary; provided that in no event shall any such
assignment or assumption cause any Lender to hold Commitments in excess of its US Revolving Credit
Commitment or Canadian Revolving Credit Commitment, as applicable.
(b) The assignments and assumptions contemplated by Section 3.05(a) shall be effected by book
entry in the Register by the Agent in each case in such manner, and with such supporting
documentation, as may be determined by the Agent.
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Company. The Company represents
and warrants as follows:
(a) Each Loan Party is duly organized, validly existing and, to the extent such concept
is applicable, in good standing under the laws of the jurisdiction of its organization.
(b) The execution, delivery and performance by each Loan Party of each Loan Document to
which it is or is to be party, and the consummation of the transactions contemplated hereby
and thereby, are within such Loan Party’s corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene such Loan Party’s charter or by-laws,
(ii) violate law, rule, regulation (including, without limitation, with respect to the
Borrowers, Regulation X of the Board of Governors of the Federal Reserve System), order,
writ, judgment, injunction, decree, determination or award, (iii) conflict with or result in
the breach of, or constitute a default or require any payment to be made under, any material
contractual restriction or, to such Loan Party’s knowledge, any other contractual
restriction, binding on or affecting such Loan Party or (iv) except for the Liens created
under the Loan Documents, result in or require the creation or imposition of any Lien upon
or with respect to any of the properties of any Loan Party or any of its Subsidiaries.
(c) No authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or any other third party is required for (i)
the due execution, delivery, recordation, filing or performance by any Loan Party of any
Loan Document to which it is or is to be a party, (ii) other than as set forth in Section
6(m) of the US Security Agreement or Section 6(m) of the Canadian Security Agreement, the
grant by any Loan Party of the Liens granted by it pursuant to the Collateral Documents,
(iii) other than in respect of the Specified Collateral as set forth in Section 6(m) of the
US Security Agreement or Section 6(m) of the Canadian Security Agreement, the perfection or
maintenance of the Liens created under the Collateral Documents (including the first
priority nature thereof) or (iv) except for any notices that may be required pursuant to any
applicable Intercreditor Agreement, the exercise by the Agent or any Lender of its rights
under the Loan Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents.
(d) This Agreement has been, and each other Loan Document when delivered hereunder will
have been, duly executed and delivered by each Loan Party party thereto. This Agreement is,
and each other Loan Document when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto enforceable against such Loan Party in
accordance with their respective terms, except as enforceability may be affected by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting enforcement of creditors’ rights generally and by general principles of equity,
whether enforcement is sought in a proceeding in equity or at law.
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(e) The Consolidated statement of financial position of the Company and its
Consolidated Subsidiaries as at December 31, 2010, and the related Consolidated statement of
earnings and Consolidated statement of cash flows of the Company and its Consolidated
Subsidiaries for the fiscal year then ended, accompanied by an opinion of
PricewaterhouseCoopers LLP, independent public accountants, copies of which have been
furnished to each Lender, fairly present, the Consolidated financial condition of the
Company and its Consolidated Subsidiaries as at such date and the Consolidated statement of
earnings and Consolidated statement of cash flows of the Company and its Consolidated
Subsidiaries for the period ended on such date, all in accordance with generally accepted
accounting principles consistently applied. Since December 31, 2010, there has been no
Material Adverse Change except as disclosed in filings made with the Securities and Exchange
Commission and press releases, in each case prior to the date of this Agreement.
(f) There is no pending or, to the knowledge of the Company, threatened action, suit,
investigation, litigation or proceeding, including, without limitation, any Environmental
Action, affecting the Company or any of its Subsidiaries before any court, governmental
agency or arbitrator that (i) is reasonably likely to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this Agreement or any other
Loan Document or the consummation of the transactions contemplated hereby.
(g) No Borrower is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock (within the meaning of Regulation U issued by the Board
of Governors of the Federal Reserve System), and no proceeds of any Advance will be used to
purchase or carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(h) No Borrower is an “investment company”, or a company “controlled” by an “investment
company”, within the meaning of the Investment Company Act of 1940, as amended.
(i) The Company and each of its Subsidiaries owns, or is licensed to use, all
trademarks, tradenames, copyrights, technology, know-how and processes necessary for the
conduct of its business as currently conducted except for those the failure to own or
license which are not reasonably expected to have a Material Adverse Effect (the
“Intellectual Property”). No claim has been asserted and is pending by any Person
challenging or questioning the use of any such Intellectual Property or the validity or
effectiveness of any such Intellectual Property, nor does the Company know of any valid
basis for any such claim, except, in either case, for such claims that in the aggregate are
not reasonably expected to have a Material Adverse Effect. The use of such Intellectual
Property by the Company and its Subsidiaries does not infringe on the rights of any Person,
except for such claims and infringements that, in the aggregate, are not reasonably expected
to have a Material Adverse Effect.
(j) (i) No ERISA Event has occurred or is reasonably expected to occur with respect to
any Plan that has resulted in or is reasonably expected to result in a material liability of
any Loan Party or any ERISA Affiliate.
(ii) Neither any Loan Party nor any ERISA Affiliate has incurred or is
reasonably expected to incur any Withdrawal Liability to any Multiemployer Plan that
in the aggregate could reasonably be expected to have a Material Adverse Effect.
(iii) Neither any Loan Party nor any ERISA Affiliate has been notified by the
sponsor of a Multiemployer Plan that such Multiemployer Plan is in reorganization,
insolvent or has been terminated, within the meaning of Title IV of ERISA, or has
been determined to be in “endangered” or “critical” status within the meaning of
Section 432 of the Code or Section 305 of ERISA, and no such Multiemployer Plan is
reasonably expected to be in reorganization, insolvent or to be terminated, within
the meaning of Title IV of ERISA or in endangered or critical status.
(iv) Except as could not reasonably be expected to have a Material Adverse
Effect: (a) the Canadian Pension Plans are duly registered under the Income Tax Act
(Canada) and all other applicable laws which require registration; (b) all material
obligations of each Canadian Loan Party (including , funding, investment and
administration obligations) required to be
59
performed in connection with the Canadian Pension Plans and any funding
agreements therefor have been performed in a timely fashion ; and (c) there are no
material outstanding disputes involving any Canadian Loan Party or its Affiliates
concerning the assets of the Canadian Pension Plans.
(k) The operations and properties of the Company and each of its Consolidated
Subsidiaries comply in all material respects with all applicable Environmental Laws and
Environmental Permits, all past non-compliance with such Environmental Laws and
Environmental Permits has been or is reasonably expected to be resolved without ongoing
obligations or costs that have had or are reasonably expected to have a Material Adverse
Effect, and no circumstances exist that are reasonably likely to (A) form the basis of an
Environmental Action against the Company or any of its Subsidiaries or any of their
properties that is reasonably expected to have a Material Adverse Effect or (B) cause any
such property to be subject to any restrictions on ownership, occupancy, use or
transferability under any Environmental Law that is reasonably expected to have a Material
Adverse Effect.
(l) The Company and each of its Subsidiaries has good and marketable fee simple title
to or valid leasehold interests in all of the real property owned or leased by the Company
or such Subsidiary and good title to all of their personal property, except where the
failure to hold such title or leasehold interests, individually or in the aggregate is not
reasonably expected to have a Material Adverse Effect. The Company and its Subsidiaries
enjoy peaceful and undisturbed possession under all of their respective leases except where
the failure to enjoy such peaceful and undisturbed possession, individually or in the
aggregate, is not reasonably expected to have a Material Adverse Effect.
(m) All factual information, taken as a whole, furnished by or on behalf of the Company
and its Subsidiaries, taken as a whole, in writing to the Agent, the Co-Collateral Agents,
the Arrangers or any Lender on or prior to the Effective Date, for purposes of this
Agreement and all other such factual information taken as a whole, furnished by the Company
on behalf of itself and its Subsidiaries, taken as a whole, in writing to the Agent, the
Co-Collateral Agents, the Arrangers or any Lender pursuant to the terms of this Agreement
will be, true and accurate in all material respects on the date as of which such information
is dated or furnished and not incomplete by knowingly omitting to state any material fact
necessary to make such information, taken as a whole, not misleading at such time,
provided, however, that with respect to any projected financial information
or forward-looking statements, the Company represents only that such information was
prepared in good faith based upon assumptions, and subject to such qualifications, believed
to be reasonable at the time.
(n) All filings and other actions necessary or desirable to perfect and protect the
security interest in the Collateral (other than in respect of the Specified Collateral as
set forth in Section 6(m) of the US Security Agreement and Section 6(m) of the Canadian
Security Agreement) created under the Collateral Documents have been duly made or taken and
are in full force and effect, and the Collateral Documents create in favor of the Agent for
the benefit of the Secured Parties a valid and, together with such filings and other
actions, perfected first priority security interest in the Collateral (other than the
Specified Collateral), securing the payment of the Secured Obligations (as defined in each
Security Agreement), and all filings and other actions necessary or desirable to perfect and
protect such security interest have been duly taken. The Loan Parties are the legal and
beneficial owners of the Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.
(o) Each Borrower is, individually and together with its Subsidiaries, Solvent.
(p) (i) Set forth on Part A of Schedule II hereto is a complete and accurate list of
all direct and indirect Subsidiaries of the Company that are organized under the laws of a
state of the United States of America, (ii) set forth on Part B of Schedule II hereto is a
complete and accurate list of all direct and indirect Subsidiaries of Kodak Canada that are
organized under the laws of Canada or a province or territory thereof and (iii) set forth on
Part C of Schedule II hereto is a complete and accurate list of all Material Subsidiaries of
each Borrower, showing, in each case, as of the Effective Date (as to each such Subsidiary)
the jurisdiction of its formation, the number of shares, membership interests or partnership
interests (as applicable) of each class of its equity interests authorized, and the number
outstanding, on the
60
Effective Date and the percentage of each such class of its Equity Interests owned
(directly or indirectly) by the applicable Loan Party and the number of shares covered by
all outstanding options, warrants, rights of conversion or purchase and similar rights at
the Effective Date. All of the outstanding equity interests in each Loan Party’s
Subsidiaries have been validly issued, are fully paid and non-assessable and, except as
otherwise provided herein, are owned by such Loan Party or one or more of its Subsidiaries,
other than director’s qualifying shares or similar minority interests required under the
laws of the Subsidiary’s formation, free and clear of all Liens, except those created under
the Collateral Documents or permitted pursuant to Section 5.02(a)(ix).
(q) Schedule III sets forth all Deposit Accounts other than Excluded Accounts
maintained by the Loan Parties in the United States or Canada, including, with respect to
each depository (i) the name and address of such depository, (ii) the account number(s)
maintained with such depository and (iii) a contact person at such depository.
ARTICLE V
SECTION 5.01. Affirmative Covenants. So long as any Advance or any other payment
obligation of any Loan Party of which the Company has knowledge under any Loan Document shall
remain unpaid, any Letter of Credit is outstanding or any Lender shall have any Commitment
hereunder, the Company will:
(a) Compliance with Laws. Comply, and cause each of its Subsidiaries to
comply, in all material respects, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with ERISA, Environmental Laws
and the PATRIOT Act, except where such non-compliance is not reasonably expected to have a
Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become delinquent, (i) all taxes,
assessments and governmental charges or levies imposed upon it or upon its property and (ii)
all lawful claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Company nor any of its Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which appropriate reserves
are being maintained, unless and until any Lien resulting therefrom attaches to its property
and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain, and cause each of its Subsidiaries to
maintain, insurance with responsible and reputable insurance companies or associations in
such amounts and covering such risks as is usually carried by companies engaged in similar
businesses and owning similar properties in the same general areas in which the Company or
such Subsidiary operates; provided, however, that the Company and its
Subsidiaries may self-insure to the extent consistent with prudent business practice.
(d) Preservation of Corporate Existence. Preserve and maintain, and cause each
of its Subsidiaries to preserve and maintain, its corporate existence, rights (charter and
statutory) and franchises; provided, however, that the Company and its
Subsidiaries may consummate any amalgamation, merger or consolidation permitted under
Section 5.02(b) and provided further that neither the Company nor any of its
Subsidiaries shall be required to preserve any right or franchise if the Company determines
that the preservation thereof is no longer desirable in the conduct of the business of the
Company or such Subsidiary, as the case may be, and that the loss thereof is not reasonably
expected to have a Material Adverse Effect.
(e) Visitation Rights. (i) At any reasonable time, on reasonable notice and
from time to time, permit the Agent or any of the Lenders or any agents or representatives
thereof, to examine and make copies of and abstracts from the records and books of account
of, and visit the properties of, the Company and any of its Subsidiaries, and to discuss the
affairs, finances and accounts of the Company and any of its Subsidiaries with any of their
officers or directors and with their independent certified public accountants, provided that
all such information is subject to the provisions of Section 9.09. At any time prior to the
61
occurrence of a continuing Event of Default, the right of the Agent and any of the
Lenders to visit the property of the Company and any of its Subsidiaries shall be subject to
reasonable rules and restrictions of the Company for such access, and such visit shall not
unreasonably interfere with the ongoing conduct of the business of the Company and its
Subsidiaries at such properties.
(ii) At any reasonable time and from time to time (except as may be limited by
subsections (iii) and (iv) below) during regular business hours, upon reasonable notice,
permit the Agent or any of the Lenders or any agents or representatives thereof (including
any consultants, accountants, lawyers and appraisers retained by the Agent) to visit the
properties of the Company and its Subsidiaries to conduct evaluations, appraisals,
environmental assessments and ongoing maintenance and monitoring in connection with the
Company’s computation of the Borrowing Base and the assets included in the Borrowing Base
and such other assets and properties of the Company or its Subsidiaries as the Agent or
Co-Collateral Agents may require, and to monitor the Collateral and all related systems.
(iii) Permit the Co-Collateral Agents to conduct, at the sole cost and expense of the
Company: (a) field examinations and inventory appraisals of Collateral, provided that such
examinations and appraisals may be conducted (i) so long as Excess Availability is at least
15% of the sum of the Canadian Revolving Credit Facility plus the US Revolving Credit
Facility, not more than twice per twelve month period, and (ii) if Excess Availability is
less than 15% of the sum of the Canadian Revolving Credit Facility plus the US Revolving
Credit Facility for a period of three (3) consecutive days, not more than three (3) times
per twelve-month period and (b) machinery and equipment appraisals of Collateral, provided
that such appraisals may be conducted (i) so long as Excess Availability is at least 15% of
the sum of the Canadian Revolving Credit Facility plus the US Revolving Credit Facility, not
more than once per twelve month period, and (ii) if Excess Availability is less than 15% of
the sum of the Canadian Revolving Credit Facility plus the US Revolving Credit Facility for
a period of three (3) consecutive days, not more than twice per twelve-month period.
Notwithstanding the foregoing, following the occurrence and during the continuation of an
Event of Default such field examinations and appraisals may be conducted at the Company’s
expense as many times as the Co-Collateral Agents shall consider reasonably necessary.
(f) Keeping of Books. Keep and maintain proper books of record and account on
a Consolidated basis for Company and its Subsidiaries in conformity with generally accepted
accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and cause each of
its Subsidiaries to maintain and preserve in all material respects, all of its properties
that are used or useful in the conduct of its business in good working order and condition,
ordinary wear and tear excepted, except where the failure to so maintain or preserve is not
reasonably expected to have a Material Adverse Effect.
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 45 days after the end of each
of the first three quarters of each fiscal year of the Company, the Consolidated
statement of financial position of the Company and its Consolidated Subsidiaries as
of the end of such quarter and Consolidated statements of earnings and cash flows of
the Company and its Consolidated Subsidiaries for the period commencing at the end
of the previous fiscal year and ending with the end of such quarter, duly certified
by the chief financial officer of the Company as having been prepared in accordance
with generally accepted accounting principles subject to normal year-end audit
adjustments and other items, such as footnotes, omitted in interim statements, and
certificates of a Responsible Officer of the Company as to compliance with the terms
of this Agreement and setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Section 5.03 (regardless of whether such covenant is
then in effect), provided that in the event of any change in generally
accepted accounting principles used in the preparation of such financial statements,
the Company shall also provide, if necessary for the determination of compliance
with Section 5.03, a statement of reconciliation conforming such financial
statements to GAAP as applied in the preparation of the financial statements
delivered pursuant to Section 4.01(e);
62
(ii) as soon as available and in any event within 90 days after the end of each
fiscal year of the Company, a copy of the annual audit report for such year for the
Company and its Consolidated Subsidiaries, containing the Consolidated statement of
financial position of the Company and its Consolidated Subsidiaries as of the end of
such fiscal year and Consolidated statements of earnings and cash flows of the
Company and its Consolidated Subsidiaries for such fiscal year, in each case
accompanied by an opinion acceptable to the Required Lenders by registered
independent public accountants reasonably acceptable to the Required Lenders and
certificates of a Responsible Officer of the Company as to compliance with the terms
of this Agreement and setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Section 5.03 (regardless of whether such covenant is
then in effect), provided that in the event of any change in generally
accepted accounting principles used in the preparation of such financial statements,
the Company shall also provide, if necessary for the determination of compliance
with Section 5.03, a statement of reconciliation conforming such financial
statements to GAAP as applied in the preparation of the financial statements
delivered pursuant to Section 4.01(e);
(iii) as soon as possible and in any event within five days after the Company
has knowledge of the occurrence of each Default continuing on the date of such
statement, a statement of a Responsible Officer of the Company setting forth details
of such Default and the action that the Company has taken and/or proposes to take
with respect thereto;
(iv) promptly after the sending or filing thereof, copies of all reports that
the Company sends to any of its securityholders, and copies of all reports and
registration statements that the Company or any Subsidiary files with the Securities
and Exchange Commission or any national securities exchange;
(v) notice of all actions and proceedings before any court, governmental agency
or arbitrator affecting the Company or any of its Subsidiaries of the type which
would have been required to be disclosed under Section 4.01(f), promptly after the
later of the commencement thereof or knowledge that such actions or proceedings are
reasonably likely to be of a type which would have been required to be disclosed
under Section 4.01(f);
(vi) as soon as available and in any event no later than 45 days after the end
of each fiscal quarter, amended or supplemented Schedules setting forth such
information as would be required to make the representations set forth in Section
6(a), (c), (d), (h), (i), (l) and (p)(iii) of the US Security Agreement and Section
6(a), (c), (d), (h), (i), (l) and (p)(iii) of the Canadian Security Agreement true
and correct as if the Schedules referenced therein were delivered on such date;
(vii) such other information respecting the Company or any of its Subsidiaries
as any Lender through the Agent may from time to time reasonably request;
(viii) As soon as available, and in any event no later than 60 days after the
end of each fiscal year of the Company, a reasonably detailed consolidated budget
for the fiscal year immediately following such fiscal year on a quarterly basis, and
on an annual basis for each year thereafter through the Termination Date (including
a projected Consolidated balance sheet of the Company and its Subsidiaries as of the
end of the following fiscal year), the related projected Consolidated statements of
cash flow and income for such fiscal year and the projected Excess Availability
(detailing the respective Borrowing Bases and the amount of aggregate Advances)
expected as of the end of each month during such fiscal year (collectively, the
“Projections”), which Projections shall be accompanied by a certificate of a
Responsible Officer of the Company stating that such Projections are based on then
reasonable estimates and then available information and assumptions; it being
understood that the Projections are made on the basis of the Company’s then current
good faith views and assumptions believed to be reasonable when made with respect to
future events, and assumptions that the Company believes to be reasonable as of the
date thereof and further being understood that projections, including the
Projections, are subject to significant uncertainties and contingencies, many of
which are beyond the Company’s control, inherently unreliable and that actual
performance may differ materially from the Projections and
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no assurance is given by the delivery of such Projections or otherwise that the
Projections will be realized.
(ix) A Borrowing Base Certificate substantially in the form of Exhibit
G as of the date required to be delivered or so requested, in each case with
supporting documentation (including, without limitation, the documentation described
in Schedule 1 to Exhibit G) shall be furnished to the Agent: (A) on or
before the 15th day following the end of each fiscal month other than the last
fiscal month of each fiscal quarter, and on or before the 21st day of the
last fiscal month in each fiscal quarter, which monthly Borrowing Base Certificate
shall reflect the Collateral contained in the Borrowing Base updated as of the end
of each such month; (B) in addition to such monthly Borrowing Base Certificates,
upon the occurrence and continuance of an Event of Default or if Excess Availability
is less than 15% of the sum of the Canadian Revolving Credit Facility plus the US
Revolving Credit Facility, on or before the third Business Day following the end of
each week, which weekly Borrowing Base Certificate shall reflect the Collateral
included in the Borrowing Base updated as of the immediately preceding Thursday;
provided that if Excess Availability is equal to or greater than 15% of the
sum of the Canadian Revolving Credit Facility plus the US Revolving Credit Facility
for thirty (30) consecutive days, such Borrowing Base Certificate shall be delivered
pursuant to clause (A) herein; and (C) if requested by the Agent at any other time
when the Agent reasonably believes that the then existing Borrowing Base Certificate
is materially inaccurate, as soon as reasonably available after such request; in
each case with supporting documentation as the Agent, the Lenders or the
Co-Collateral Agents may reasonably request (including without limitation, the
documentation described on Schedule 1 to Exhibit G).
(x) (A) Promptly and in any event within 20 days after any Loan Party or any
ERISA Affiliate knows or has reason to know that any ERISA Event or Termination
Event has occurred, a statement of a Responsible Officer of such Loan Party
describing such ERISA Event or Termination Event and the action, if any, that such
Loan Party or such ERISA Affiliate has taken and proposes to take with respect
thereto and (B) on the date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to Section 4010 of ERISA or
to the Ontario Superintendent of Pensions with respect to a Termination Event
affecting any Canadian Pension Plan, a copy of such records, documents and
information.
(xi) Promptly and in any event within two business days after receipt thereof
by any Loan Party or any ERISA Affiliate, copies of each notice from the PBGC or
other governmental or regulatory authority stating its intention to terminate any
Plan or any Canadian Pension Plan or to have a trustee appointed to administer any
Plan or any Canadian Pension Plan.
(xii) Promptly and in any event within five business days after receipt thereof
by any Loan Party or any ERISA Affiliate from the sponsor of a Multiemployer Plan,
copies of each notice concerning (A) the imposition of Withdrawal Liability by any
such Multiemployer Plan, (B) the reorganization or termination, within the meaning
of Title IV of ERISA, of any such Multiemployer Plan or (C) the amount of liability
incurred, or that may be incurred, by such Loan Party or any ERISA Affiliate in
connection with any event described in clause (A) or (B).
Documents required to be delivered pursuant to Section 5.01(h)(i), (ii) and (iv) (to
the extent any such documents are included in materials otherwise filed with the
Securities Exchange Commission) may be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i) on which the Company posts
such documents, or provides a link thereto on the Company’s website on the Internet
at the website address listed on Schedule 9.02; or (ii) on which such documents are
posted on the Company’s behalf on an Internet or intranet website, if any, to which
each Lender and the Agent have access (whether a commercial, third-party website or
whether sponsored by the Agent); provided that: (A) upon written request of
the Agent, the Company shall deliver paper copies of such documents to the Agent
until a written request to cease delivering paper copies is given by the Agent and
(B) the Company shall notify the Agent (by telecopier or electronic mail) of the
posting of any such documents and provide to the Agent
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by electronic mail electronic versions (i.e., soft copies) of such
documents. The Agent shall have no obligation to request the delivery of or to
maintain paper copies of the documents referred to above, and in any event shall
have no responsibility to monitor compliance by the Company with any such request by
a Lender for delivery, and each Lender shall be solely responsible for timely
accessing posted documents or requesting delivery of paper copies of such documents
from the Agent and maintaining its copies of such documents.
Each Borrower hereby acknowledges that (a) the Agent, the Arrangers and the
Co-Collateral Agents will make available to the Lenders and the Issuing Banks
materials and/or information provided by or on behalf of the Borrowers hereunder
(collectively, “Borrower Materials”) by posting the Borrower Materials on
IntraLinks or another similar electronic system (the “Platform”) and (b)
certain of the Lenders (each, a “Public Lender”) may have personnel who do
not wish to receive material non-public information with respect to the Company or
its Affiliates, or the respective securities of any of the foregoing, and who may be
engaged in investment and other market-related activities with respect to such
Persons’ securities. Each Borrower hereby agrees that it will use commercially
reasonable efforts to identify that portion of the Borrower Materials that may be
distributed to the Public Lenders and that (w) all such Borrower Materials shall be
clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the
word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking
Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the
Agent, the Arrangers, the Co-Collateral Agents, the Issuing Banks and the Lenders to
treat such Borrower Materials as not containing any material non-public information
(although it may be sensitive and proprietary) with respect to the Company or its
securities for purposes of United States Federal and state securities laws
(provided, however, that to the extent such Borrower Materials
constitute Borrower Information, they shall be treated as set forth in Section
9.09); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available
through a portion of the Platform designated “Public Side Information;” and (z) the
Agent, the Arrangers and the Co-Collateral Agents shall be entitled to treat any
Borrower Materials that are not marked “PUBLIC” as being suitable only for posting
on a portion of the Platform not designated “Public Side Information.”
Notwithstanding the foregoing, the Borrowers shall be under no obligation to xxxx
any Borrower Materials “PUBLIC”.
(i) Covenant to Guarantee Obligations and Give Security. Upon (x) the request
of the Agent following the occurrence and during the continuance of a Default, (y) the
formation or acquisition of (1) any Material Subsidiaries owned directly by a Borrower, (2)
any Subsidiaries organized under the laws of any state of the United States of America owned
directly or indirectly by the Company or (3) any Subsidiaries organized under the laws of
Canada or any province or territory thereof owned directly or indirectly by Kodak Canada or
(z) the acquisition of any property by any Loan Party, and such property, in the judgment of
the Agent (as to which judgment the Agent has given notice to the Company), shall not
already be subject (other than in respect of the Specified Collateral) to a perfected first
priority security interest in favor of the Agent for the benefit of the Secured Parties,
then in each case at the Company’s expense:
(i) in connection with the formation or acquisition of a Subsidiary organized
under the laws of a state of the United States of America or Canada (or province or
territory thereof) owned directly or indirectly by the Company or Kodak Canada that
(A) is not a CFC (unless such Subsidiary is owned directly or indirectly by Kodak
Canada), (B) is not a “Restricted Subsidiary” (as defined in the Indenture) or (C)
is not a Person having total assets of less than $10,000,000, (and, so long as it is
not such a Person) within 30 days after such formation or acquisition, cause each
such Subsidiary, duly execute and deliver to the Agent a guaranty supplement, in the
form of Exhibit F hereto, guaranteeing the applicable Guaranteed
Obligations,
(ii) within 45 days after (A) such request or acquisition of property other
than any “Principal Property” (as defined in the Indenture) by any Loan Party, duly
execute and deliver, and cause each Loan Party to duly execute and deliver, to the
Agent such additional pledges, assignments, security agreement supplements,
intellectual property security agreement
65
supplements and other security agreements as specified by, and in form and
substance reasonably satisfactory to, the Agent, securing payment of all the
obligations of such Loan Party under the Loan Documents and constituting Liens on
all such properties and (B) such formation or acquisition of any Material
Subsidiary, duly execute and deliver and cause each Loan Party acquiring equity
interests in such Subsidiary to duly execute and deliver to the Agent pledges,
assignments and security agreement supplements related to such equity interests as
specified by, and in form and substance satisfactory to, the Agent, securing payment
of all of the obligations of such Loan Party under the Loan Documents;
provided that (A) the stock of any Restricted Subsidiary shall not be
required to be pledged, (B) the stock of any Subsidiary held by a CFC shall not be
required to be pledged unless such Subsidiary is owned directly by Kodak Canada and
(C) if such new property is equity interests in a CFC (unless such Subsidiary is
owned directly by Kodak Canada), no more than 65% of the voting equity interests in
such CFC shall be pledged in favor of the Secured Parties,
(iii) within 60 days after such request, formation or acquisition, take, and
cause each Loan Party to take, whatever action (including, without limitation, the
filing of UCC and/or PSSA financing statements (or similar registrations or
filings), the giving of notices and the endorsement of notices on title documents)
may be necessary or advisable in the reasonable opinion of the Agent to vest in the
Agent (or in any representative of the Agent designated by it) valid and subsisting
Liens on the properties purported to be subject to the pledges, assignments,
security agreement supplements, intellectual property security agreement supplements
and security agreements delivered pursuant to this Section 5.01(i), enforceable
against all third parties in accordance with their terms (other than in respect of
the Specified Collateral as set forth in Section 6(m) of the US Security Agreement
and Section 6(m) of the Canadian Security Agreement),
(iv) within 60 days after such request, formation or acquisition, deliver to
the Agent, upon the request of the Agent in its sole discretion, a signed copy of
one or more favorable opinions, addressed to the Agent and the other Secured
Parties, of counsel for the Loan Parties reasonably acceptable to the Agent as to
(1) such guaranties, guaranty supplements, pledges, assignments, security agreement
supplements, intellectual property security agreement supplements and security
agreements described in clauses (i), (ii) and (iii) above being legal, valid and
binding obligations of each Loan Party party thereto enforceable in accordance with
their terms and as to the matters contained in clause (iii) above, subject to
customary exceptions, (2) such recordings, filings, notices, endorsements and other
actions being sufficient to create valid perfected Liens on such assets, and (3)
such other matters as the Agent may reasonably request, consistent with the opinions
delivered on the Effective Date (to the extent applicable).
(v) at any time and from time to time, promptly execute and deliver, and cause
each Loan Party and each Material Subsidiary to execute and deliver, any and all
further instruments and documents and take, and cause such Subsidiary to take, all
such other action as the Agent may deem reasonably necessary or desirable in
obtaining the full benefits of, or in perfecting and preserving the Liens of, such
guaranties, pledges, assignments, security agreement supplements, intellectual
property security agreement supplements and security agreements to the extent
required by this Section 5.01(i) and the applicable Collateral Documents.
Notwithstanding the foregoing, the Borrowers shall have no obligation to provide in
favor of the Secured Parties perfected security interests in any real property held by the
Borrowers or their Subsidiaries.
(j) Further Assurances. (i) Promptly upon the reasonable request by the
Agent, or any Lender through the Agent, correct, and cause each of the other Loan Parties
promptly to correct, any material defect or error that may be discovered in any Loan
Document or in the execution, acknowledgment, filing or recordation thereof, and
(ii) Promptly upon the reasonable request by the Agent, or any Lender through
the Agent, do, execute, acknowledge, deliver, record, re-record, file, re-file,
register and re-register
66
any and all such further acts, pledge agreements, assignments, financing statements and
continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as the Agent, or any
Lender through the Agent, may reasonably require from time to time in order to (A)
carry out more effectively the purposes of the Loan Documents, (B) to the fullest
extent permitted by applicable law and the terms of this Agreement and the
Collateral Documents, subject any Loan Party’s properties, assets, rights or
interests to the Liens now or hereafter intended to be covered by any of the
Collateral Documents, (C) perfect and maintain the validity, effectiveness and
priority of any of the Collateral Documents and any of the Liens intended to be
created thereunder and (D) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Secured Parties the rights granted or
now or hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any Loan Document
to which any Loan Party or any of its Subsidiaries formed or acquired after the
Effective Date is or is to be a party, and cause each of its Subsidiaries to do so.
(k) Transactions with Affiliates. Conduct, and cause each of its Subsidiaries
to conduct, all transactions otherwise permitted under this Agreement with any of their
Affiliates on terms that are fair and reasonable and no less favorable to the Company or
such Subsidiary than it would obtain in a comparable arm’s-length transaction (determined in
the reasonable judgment of the Company) with a Person not an Affiliate, other than (i)
intercompany transactions among the Company and its wholly-owned Subsidiaries, (ii) fees and
other benefits to non-officer directors of the Company and its Subsidiaries and (iii)
employment, severance and other similar arrangements and employee benefits with officers and
employees of the Company and its Subsidiaries.
(l) Maintenance of Cash Management System. (i) In accordance with Section 2.18
of this Agreement, establish and maintain a cash management system on terms reasonably
acceptable to the Agent and (ii) continue to maintain one or more Concentration Accounts to
be used by each Borrower as its principal concentration account for day-to-day operations
conducted by such Borrower.
(m) Foreign Security Interests. Within 90 days following the Effective Date (or
such longer time as may be reasonably agreed by the Agent, the Borrowers shall have executed
and delivered to the Agent all documents and instruments required to create and perfect the
Agent’s first priority security interest in the Collateral in jurisdictions outside the U.S.
and Canada (free and clear of all other liens, subject to exceptions permitted hereunder)
(including amendments and other modifications of the collateral documentation in respect of
the Existing Credit Agreement or the execution and delivery of new Collateral Documents to
the extent reasonably required by the Agent).
(n) Administration of Accounts and Inventory. (i) Each Loan Party shall keep
accurate and complete records of its Accounts, including all payments and collections
thereon, and shall submit to the Agent sales, collection, reconciliation and other reports
in form reasonably satisfactory to the Agent, on such periodic basis as the Agent may
reasonably request. The Company shall also provide to the Agent, upon the Agent’s request,
a detailed aged trial balance of all Accounts as of the end of the preceding month,
specifying each Account’s Account Debtor name and address, amount, invoice date and due
date, showing any discount, allowance, credit, authorized return or dispute, and including
such proof of delivery, copies of invoices and invoice registers, copies of related
documents, repayment histories, status reports and other information as the Agent may
reasonably request. If Accounts in an aggregate face amount of $10,000,000 or more cease to
be Eligible Receivables, the Company shall notify the Agent of such occurrence promptly (and
in any event within three Business Days) after any Loan Party has knowledge thereof).
(ii) If an Account of any Loan Party includes a charge for any Taxes, the Agent is
authorized, in its discretion, to pay the amount thereof to the proper taxing authority for
the account of such Loan Party if such Loan Party does not do so and to charge the Borrowers
therefor; provided, however, that neither the Agent nor the Lenders shall be
liable for any Taxes that may be due from the Loan Parties or with respect to any
Collateral.
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(iii) Whether or not a Default or a Cash Control Trigger Event exists, the Agent shall
have the right at any time, in the name of the Agent, any designee of the Agent or any Loan
Party, to verify the validity, amount or any other matter relating to any Accounts of the Loan Party by mail,
telephone or otherwise. The Loan Parties shall cooperate fully with the Agent in an effort
to facilitate and promptly conclude any such verification process.
(iv) Each Loan Party shall keep accurate and complete records of its Inventory,
including costs and daily withdrawals and additions, and shall submit to the Agent inventory
and reconciliation reports in form reasonably satisfactory to the Agent, on such periodic
basis as the Agent may request. Each Loan Party shall conduct a physical inventory at least
once per calendar year (and on a more frequent basis if requested by the Agent when a
Default exists) or periodic cycle counts consistent with historical practices, and shall
provide to the Agent a report based on each such inventory and count promptly upon
completion thereof, together with such supporting information as the Agent may reasonably
request. Upon request by the Agent, the Agent may participate in and observe any such
physical count.
(v) No Loan Party shall return any Inventory to a supplier, vendor or other Person,
whether for cash, credit or otherwise, unless (A) such return is in the ordinary course of
business; (B) no Default, exists or would result therefrom; and (C) the Agent is promptly
notified if the aggregate value of all Inventory returned in any month exceeds $10,000,000.
(vi) The Loan Parties shall use, store and maintain all Inventory with reasonable care
and caution, in accordance with applicable standards of any insurance and in conformity with
all applicable law, and shall make current rent payments (within applicable grace periods
provided for in leases) at all locations where any Collateral is located.
(vii) The Loan Parties shall actively assist the Co-Collateral Agents to conduct and
prepare, as soon as practicable, an equipment appraisal in form and substance (as to
methodology and scope) substantially similar to the 2009 equipment appraisal prepared in
connection with the Existing Credit Agreement.
SECTION 5.02. Negative Covenants. So long as any Advance or any other payment
obligation of any Loan Party of which the Company has knowledge under any Loan Document shall
remain unpaid, any Letter of Credit is outstanding or any Lender shall have any Commitment
hereunder, the Company will not:
(a) Liens. Create or suffer to exist, or permit any of its Subsidiaries to
create or suffer to exist, any Lien on or with respect to any of its properties, whether now
owned or hereafter acquired, or assign, or permit any of its Subsidiaries to assign, any
right to receive income, other than the following, provided that any Lien permitted by any
clause below shall be permitted under this Section 5.02(a), notwithstanding that such Lien
would not be permitted by any other clause:
(i) Permitted Liens,
(ii) Liens created under the Loan Documents,
(iii) Liens upon or in any real property or equipment acquired or held by the
Company or any Subsidiary in the ordinary course of business to secure the purchase
price of such property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition or improvement of such property or equipment
(including any Liens placed on such property or equipment within 180 days after the
acquisition of such property or equipment), or Liens existing on such property or
equipment at the time of its acquisition (other than any such Liens created in
contemplation of such acquisition that were not incurred to finance the acquisition
of such property) or extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount, provided, however, that no such
Lien shall extend to or cover any properties of any character other than the real
property or equipment being acquired, and no such extension, renewal or replacement
shall extend to or cover any properties not theretofore subject to the Lien being
extended, renewed or replaced, provided further that the aggregate
principal amount of the Debt
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secured by the Liens referred to in this clause (iii) and clause (vi) below shall not exceed $200,000,000 at any time outstanding,
(iv) the Liens existing on the Effective Date and described on Schedule 5.02(a)
hereto,
(v) Liens on property of a Person existing at the time such Person is acquired
by, amalgamated, merged into or consolidated with the Company or any Subsidiary of
the Company or becomes a Subsidiary of the Company; provided that such Liens
were not created in contemplation of such amalgamation, merger, consolidation or
acquisition and do not extend to any assets other than those of the Person so merged
or amalgamated into or consolidated with the Company or such Subsidiary or acquired
by the Company or such Subsidiary,
(vi) Liens arising under leases that have been or should be, in accordance with
generally accepted accounting principles, recorded as capital leases;
provided that the aggregate principal amount of the Debt secured by the
Liens referred to in this clause (vi) and clause (iii) above shall not exceed
$200,000,000 at any time outstanding,
(vii) Liens on assets of Subsidiaries organized under the laws of any
jurisdiction outside of the United States or Canada (A) which secure Debt permitted
under Section 5.02(d)(viii) or (B) which are incurred to permit such Subsidiaries to
preserve their rights in any judicial, quasi-judicial, governmental agency or
similar proceeding and which in the case of this clause (B) do not constitute an
Event of Default under Section 6.01(f),
(viii) the replacement, extension or renewal of any Lien permitted by clause
(iii) or (iv) above, or clause (x) below, in connection with a Permitted Refinancing
of the Debt secured thereby, in each case upon or in the same property theretofore
subject thereto,
(ix) Liens securing Debt permitted under Section 5.02(d)(xv) on a second
priority basis to the Liens securing the Obligations, subject to the terms of the
Intercreditor Agreement,
(x) Liens upon real property of the Company and its Subsidiaries and related
assets customary for non-recourse mortgage financings (provided that in no event
shall any such Lien extend to or cover any Collateral included in the Borrowing
Base) securing Debt incurred solely through the financing of such real property,
(xi) Liens in respect of judgments that do not constitute an Event of Default
under Section 6.01(f), and
(xii) Liens on assets of the Company and its Subsidiaries not constituting
Collateral which secure Debt permitted under Section 5.02(d)(xviii).
(b) Mergers. Merge, amalgamate or consolidate with or into any Person, or
permit any of its Material Subsidiaries (provided that, solely for purposes of this
Section 5.02(b), “Material Subsidiaries” shall be deemed to include any Loan Party that
would be a Material Subsidiary if it were directly owned by a Borrower) to do so,
provided that, notwithstanding the foregoing (i) any Material Subsidiary of the
Company may merge, amalgamate or consolidate with or into the Company or any other
Subsidiary of the Company (provided that if any such Person is a Loan Party, the surviving
or continuing entity shall be a Loan Party), (ii) any Subsidiary of the Company that is a
Loan Party may merge, amalgamate or consolidate with or into the Company or any other Loan
Party, (iii) any Subsidiary of the Company that is not a Loan Party may merge, amalgamate or
consolidate with or into the Company or any other Subsidiary of the Company, (iv) any
Material Subsidiary may merge, amalgamate or consolidate with any other Person so long as
such Material Subsidiary is the surviving or continuing corporation (provided that if any
such Person is a Loan Party, the surviving or continuing entity shall be a Loan Party), (v)
the Company may merge, amalgamate or consolidate with any other Person so long as the
Company is the surviving corporation, and (vi) any Subsidiary may merge, amalgamate or
consolidate with any other Person the purpose of which is to effect a disposition permitted
pursuant to Section 5.02(e)(v); provided, in each case,
69
that no Default shall have occurred and be continuing at the time of such proposed transaction or would result
therefrom.
(c) Accounting Changes. Make or permit, or permit any of its Subsidiaries to
make or permit, any change in accounting policies or reporting practices, except as required
or permitted by generally accepted accounting principles.
(d) Debt. Create or suffer to exist, or permit any of its Subsidiaries to
create or suffer to exist, any Debt other than the following, provided that any Debt
permitted by any clause below shall be permitted under this Section 5.02(d), notwithstanding
that such Debt would not be permitted by any other clause:
(i) Debt owed to the Company or to a Consolidated Subsidiary of the Company,
(ii) Debt existing on the Effective Date and described on Schedule 5.02(d)
hereto (the “Existing Debt”), and any Permitted Refinancing thereof,
(iii) Debt secured by Liens of the type described in and to the extent
permitted by Section 5.02(a)(iii) and (vi) in an aggregate amount not to exceed
$200,000,000 at any time outstanding,
(iv) Debt of a Person existing at the time such Person is amalgamated, merged
into or consolidated with the Company or any Subsidiary of the Company or becomes a
Subsidiary of the Company; provided that such Debt was not created in
contemplation of such amalgamation, merger, consolidation or acquisition,
(v) Debt arising under the Loan Documents,
(vi) Debt incurred by Emerging Market Subsidiaries in an amount not to exceed
$200,000,000 at any time outstanding,
(vii) Debt incurred by Kodak International Finance Limited, a company organized
and existing under the laws of England, (x) in connection with short term working
capital needs in an aggregate amount not to exceed $100,000,000 at any time
outstanding and (y) consisting of Hedge Agreement Obligations entered into in the
ordinary course of business to protect the Company and its Subsidiaries against
fluctuations in commodities, interest or exchanges rates,
(viii) Debt incurred by Subsidiaries organized under the laws of any
jurisdiction outside of the United States or Canada in an aggregate amount not to
exceed $100,000,000 at any time outstanding,
(ix) unsecured Debt not to exceed $300,000,000 at any time outstanding,
(x) endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business,
(xi) Debt which exists or may exist under the Secured Agreements in existence
from time to time,
(xii) Debt that is subordinated to the obligations of the Company under the
Loan Documents on terms that are reasonably satisfactory to the Agent and the
Required Lenders and any Permitted Refinancing thereof, provided that (i)
the aggregate principal amount of such Debt shall not exceed $100,000,000 at any
time outstanding, (ii) after giving effect thereto, the Company shall be in pro
forma compliance with a Fixed Charge Coverage Ratio of 1.1:1.0 and (iii) Excess
Availability shall equal or exceed $100,000,000 on a pro forma basis after giving
effect to the issuance of such Debt,
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(xiii) unsecured Debt consisting of guarantees of amounts owing by customers of
the Company under equipment and vendor financing programs in an aggregate amount not
to exceed $75,000,000 at any time outstanding,
(xiv) unsecured Debt in connection with surety bonds, guarantees and letters of
credit for customs and excise taxes, value added taxes, insurance and environmental
liabilities, rental expenses, tenders and bids and other obligations of the like
incurred in the ordinary course of business in an aggregate principal amount not to
exceed $25,000,000 at any time outstanding,
(xv) Permitted Second Lien Debt in an aggregate amount not to exceed
$1,000,000,000 at any time outstanding and any Permitted Refinancing thereof,
(xvi) Debt secured by Liens permitted under Section 5.02(a)(x),
provided that such Debt shall be non-recourse to the Company and its
Subsidiaries,
(xvii) Guarantees (i) of any Loan Party in respect of Debt of either Borrower
or any other Loan Party otherwise permitted hereunder and (ii) of any Subsidiary
that is not a Loan Party in respect of Debt of any other Subsidiary that is not a
Loan Party otherwise permitted hereunder; and
(xviii) additional Debt not to exceed $25,000,000 at any time outstanding.
(e) Sales and Other Transactions. Sell, convey, transfer, lease or otherwise
dispose of, or permit any of its Subsidiaries to sell, convey, transfer, lease or otherwise
dispose of, any assets, or grant any option or other right to purchase, lease or otherwise
acquire, or permit any of its Subsidiaries to grant any option or other right to purchase,
lease or otherwise acquire, any assets, other than the following, provided that such action
permitted by any clause below shall be permitted under this Section 5.02(e), notwithstanding
that such action would not be permitted by any other clause:
(i) sales of Inventory in the ordinary course of its business and the granting
of any option or other right to purchase, lease or otherwise acquire the Inventory
in the ordinary course of its business,
(ii) in a transaction authorized by Section 5.02(b),
(iii) sales of obsolete or worn-out property or property no longer used or
useful,
(iv) sales, transfers or other dispositions of assets among the Company and the
US Subsidiary Guarantors or among Kodak Canada and the Canadian Subsidiary
Guarantors, and
(v) other sales, transfers or other dispositions of assets, provided,
that, (x) if such assets (other than machinery or equipment) constitute Collateral
that is included in the Borrowing Base, the Company shall provide a Borrowing Base
Certificate to the Agent reflecting the revised Borrowing Base giving effect to such
sale, conveyance, transfer, lease or other disposition, (y) if any such property or
assets are comprised of machinery and equipment, to the extent that the net book
value of such machinery and equipment in any year exceeds $5,000,000 in the
aggregate and constitutes Collateral, then the Company shall deliver to the Agent a
pro forma Borrowing Base Certificate giving effect to any such dispositions and (z)
if the Net Cash Proceeds of any sale, lease or other disposition of assets in
accordance with this Section 5.02(e)(v)(y) shall exceed $25,000,000, the Company
shall provide a certificate to the Agent indicating whether such assets constitute
Collateral that is included in the Borrowing Base.
(f) Payment Restrictions Affecting Subsidiaries. Directly or indirectly, enter
into or suffer to exist, or permit any of its Subsidiaries to enter into or suffer to exist,
any agreement or arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its equity interests or repay or prepay
any Debt owed to, make loans or advances to, or otherwise transfer assets to or make
investments in, the Company or any Subsidiary of the Company (whether through a
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covenant restricting dividends, loans, asset transfers or investments, a financial covenant or
otherwise), except (i) as provided in this Agreement, (ii) any agreement or instrument
evidencing Debt existing on the Effective Date (as amended, modified, supplemented or
replaced, or subject to a Permitted Refinancing, in each case to the extent such
restrictions are not expanded in scope), (iii) any agreement in effect at the time
a Person first became a Subsidiary of the Company, so long as such agreement was not
entered into solely in contemplation of such Person becoming a Subsidiary of the Company;
(iv) any agreement evidencing debt permitted by Section 5.02(a)(iii) that imposes
restrictions on the property acquired; (v) by reason of customary provisions restricting
assignments, licenses, subletting or other transfers contained in leases, licenses, joint
venture agreements, purchase and sale or merger agreements and other similar agreements
entered into in the ordinary course of business so long as such restrictions do not extend
to assets other than those that are the subject of such lease, license or other agreement;
or (vi) in securitization transactions to the extent set forth in the documents evidencing
such transactions so long as such restrictions do not extend to assets other than those that
are the subject of such securitization transactions.
(g) Change in Nature of Business. Make, or permit any of its Material
Subsidiaries to make, any material change in the nature of the business as carried on or as
contemplated to be carried on by the Company and its Subsidiaries taken as a whole at the
Effective Date.
(h) Dividends and Other Payments. Declare or make any dividend payment or other
distribution of assets, properties, cash, rights, obligations or securities on account of
any shares of any class of capital stock of the Company, or purchase, redeem or otherwise
acquire for value (or permit any of its Subsidiaries to do so) any shares of any class of
capital stock of the Company or any warrants, rights or options to acquire any such shares,
now or hereafter outstanding, except that the Company may (i) declare and make any dividend
payment or other distribution payable in common stock of the Company, (ii) purchase, redeem
or otherwise acquire shares of its common stock or warrants, rights or options to acquire
any such shares with the proceeds received from the substantially concurrent issue of new
shares of its common stock, (iii) declare or pay cash dividends to its stockholders and
purchase, redeem or otherwise acquire shares of its capital stock or warrants, rights or
options to acquire any such shares for cash so long as: (A) on a pro forma basis after
giving effect to any such transaction, the Fixed Charge Coverage Ratio shall be not less
than 1.1:1.0, (B) on a pro forma basis after giving effect to any such transaction and for
the 30-day period immediately preceding such transaction, Excess Availability shall be not
less than 20% of the Revolving Credit Facility and (C) no Default shall have occurred and be
continuing or would result therefrom. For the avoidance of doubt, the Company shall be
permitted to issues shares of its common stock in connection with any conversion of its
convertible Debt, upon the exercise of options or warrants or otherwise.
(i) Investments in Other Persons. Make, or permit any of its Subsidiaries to
make, any Investment in any Person, except the following (provided that any Investment
permitted by any clause below shall be permitted under this Section 5.02(i), notwithstanding
that such Investment would not be permitted by any other clause):
(i) (A) Investments by the Company and its Subsidiaries in their Subsidiaries
outstanding on the Amendment Effective Date, (B) additional Investments by the
Company and its Subsidiaries in the Company or the US Subsidiary Guarantors, (C)
additional Investments by Kodak Canada and its Subsidiaries in Kodak Canada or the
Canadian Subsidiary Guarantors, (D) Investments by any Loan Party in another Loan
Party and (E) additional Investments by Subsidiaries of the Company that are not
Loan Parties in other Subsidiaries that are not Loan Parties;
(ii) loans and advances to employees in the ordinary course of the business of
the Company and its Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $25,000,000 at any time outstanding;
(iii) Investments in or by Emerging Market Subsidiaries of up to $100,000,000
in the aggregate,
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(iv) Investments in Hedge Agreements designed to hedge against fluctuations in
interest rates, foreign exchange rates or in commodity prices incurred in the
ordinary course of business and consistent with existing business practice;
(v) Investments received in settlement of claims against another Person in
connection with (A) a bankruptcy proceeding against such Person, (B) accounts
receivable arising from or trade credit granted to, in the ordinary course of
business, a financially troubled account debtor and (C) disputes regarding
intellectual property rights;
(vi) Investments not to exceed $200,000,000 in the aggregate made in connection
with the Borrowers’ growth businesses as publically identified from time to time and
identified as such to the Agent in writing, including, without limitation,
commercial inkjet, consumer inkjet, workflow/software and solutions, and packaging
businesses, provided that immediately before and after giving effect to such
Investment on a pro forma basis,(x) no Default shall have occurred and be continuing
or would result therefrom, (y) the Loan Parties shall have at least $1,000,000,000
in cash or Cash Equivalents on hand and (z) no Advances shall be outstanding under
the Revolving Credit Facility, and provided further that the value
of any common equity of the Company used as consideration in connection with any
such Investment shall not be included in calculating the amount of such Investment,
(vii) Investments not to exceed $25,000,000 in any fiscal year, in an aggregate
amount not to exceed $50,000,000 for all such Investments after the Effective Date,
(viii) additional Investments not otherwise permitted hereunder,
provided that (x) no Default shall have occurred and be continuing or would
result therefrom and (y) after giving pro forma effect thereto: (i) (A) Excess
Availability shall be at least the greater of (1) $80,000,000 and (2) 20% of the sum
of the Canadian Revolving Credit Facility plus the US Revolving Credit Facility and
(B) the Company shall be in pro forma compliance with a Fixed Charge Coverage Ratio
of 1.1:1.0; or (ii) Excess Availability shall be at least the greater of (1)
$120,000,000 and (2) 30% of the Revolving Credit Facility; provided,
further, that, with respect to each Investment made pursuant to this clause
(viii):
(A) such Investment shall not include or result in any contingent
liabilities that could reasonably be expected to be material to the
business, financial condition or operations of the Company and its
Subsidiaries, taken as a whole (as determined in good faith by the board of
directors (or persons performing similar functions) of the Company, if the
board of directors is otherwise approving such transaction, or, in each
other case, by the chief executive or financial officer of the Company); and
(B) any determination of the amount of such Investment shall include
all cash and noncash consideration (including, without limitation, the fair
value, determined in accordance with generally accepted accounting
principles, of all equity interests issued or transferred to the sellers of
such investment, all earnouts and other contingent payment obligations to,
and the aggregate amounts paid or to be paid under noncompete, consulting
and other affiliated agreements with, the sellers of such investment, all
write-downs of property and assets and reserves for liabilities with respect
thereto and all assumptions of debt, liabilities and other obligations in
connection therewith) paid by or on behalf of the Company and its
Subsidiaries in connection with such Investment, in each case payable other
than in common equity in the Company, and
(ix) Investments by the Company and its Subsidiaries in cash and Cash
Equivalents.
(j) Prepayments, Amendments, Etc. of Debt. (i) Prepay, redeem, purchase,
defease, convert into cash or otherwise satisfy prior to the scheduled maturity thereof in
any manner, any public or secured or unsecured debt securities or any Permitted Second Lien
Debt, or prepay, redeem, purchase, defease, or convert into cash, or otherwise satisfy prior
to the scheduled maturity thereof in any manner or make any payment in violation of any
subordination terms of, any Debt except: (A) regularly scheduled (including
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repayments of revolving facilities) or required repayments or redemptions of Debt permitted hereunder, (B)
any prepayments or redemptions of Debt in connection with a Permitted Refinancing of such
Debt permitted by Section 5.02(d); provided that (1) before and after giving effect
to such prepayment, redemption, purchase, defeasance or other satisfaction, no Default under
Section 6.01(a) or (e) or Event of Default shall have occurred and be continuing and (2) the Agent shall have received a
certificate from a Responsible Officer of the Company certifying compliance with the
foregoing clause (1), (C) any repayments of subordinated Debt to the Borrowers or their
Subsidiaries that was permitted to be incurred under this Agreement, (D) the Specified
Indebtedness, the Company’s 9.95% $3,000,000 notes maturing 2018 and the Company’s 9.20%
$10,000,00 notes due 2021 or (E) conversion of convertible debt into common stock of the
Company and payments of cash in lieu of fractional shares upon any such conversion or (ii)
amend, modify or change in any manner adverse to the Lenders any term or condition of any
subordinated Debt.
SECTION 5.03. Financial Covenant. So long as (a) any Advance or any other payment
obligation of any Loan Party of which the Company has knowledge under any Loan Document shall
remain unpaid, any Letter of Credit is outstanding or any Lender shall have any Commitment
hereunder and (b) any Fixed Charge Coverage Ratio Trigger Event shall have occurred and be
continuing, the Company will maintain a Consolidated Fixed Charge Coverage Ratio, for the most
recently ended fiscal quarter for which financial statements have been delivered pursuant to
Section 5.01, of not less than 1.1 to 1.0.
ARTICLE VI
SECTION 6.01. Events of Default. If any of the following events (“Events of
Default”) shall occur and be continuing:
(a) (i) Any Borrower shall fail to pay any principal of any Advance when the same
becomes due and payable; (ii) any Borrower shall fail to pay any interest on any Advance or
fees within five Business Days after the same becomes due and payable; or (iii) any Loan
Party shall fail to make any other payment under any Loan Document, within five Business
Days after notice of such failure is given by the Agent or any Lender to the Company; or
(b) Any representation or warranty made by any Borrower herein or by any Significant
Loan Party in any Loan Document to which it is a party or by a Borrower (or any of its
officers) in a certificate delivered under or in connection with any Loan Document shall
prove to have been incorrect in any material respect when made; or
(c) (i) The Company shall fail to perform or observe any term, covenant or agreement
contained in Sections 5.01(d), 5.01(e), clauses (i) through (vii) and (ix) of 5.01(h), 5.02
or 5.03, or (ii) any Significant Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be performed or observed
if such failure shall remain unremedied for 30 days after written notice thereof shall have
been given to the Company by the Agent or any Lender; or
(d) The Company or any of its Subsidiaries shall fail to pay any principal of or
premium or interest on any Debt that is outstanding in a principal, or in the case of Hedge
Agreement Obligations, net amount of, at least $50,000,000 in the aggregate (but excluding
Debt outstanding hereunder) of the Company or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the applicable
grace period, if any, specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or instrument relating
to any such Debt and shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or condition is to cause, or to
permit the holders or beneficiaries of such Debt (or a trustee or agent on behalf of such
holders or beneficiaries) to cause, with the giving of notice if required, such Debt to be
demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically
or otherwise), or an offer to repurchase, prepay, defease or redeem such Debt to be made, in
each case prior to the stated maturity of such Debt; or any such Debt shall be declared to
be due
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and payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay,
redeem, purchase or defease such Debt shall be required to be made, in each case prior to
the stated maturity thereof; or
(e) Any Borrower, any Significant Loan Party or any Material Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any Borrower, any Significant
Loan Party or any Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, interim receiver, monitor, trustee, custodian or other similar
official for it or for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either such proceeding shall
remain undismissed or unstayed for a period of 60 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or any Borrower, any Significant Loan Party
or any Material Subsidiaries shall take any corporate action to authorize any of the actions
set forth above in this subsection (e); or
(f) Judgments or orders for the payment of money in excess of $50,000,000 in the
aggregate shall be rendered against the Company or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not
be in effect; or
(g) (i) Any Person or two or more Persons acting in concert shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Company (or other securities convertible into such Voting Stock) representing
35% or more of the combined voting power of all Voting Stock of the Company; or (ii) during
any period of up to 24 consecutive months, commencing before or after the date of this
Agreement, individuals who at the beginning of such 24-month period were directors of the
Company together with individuals who were either (x) elected by a majority of the remaining
members of the board of directors of the Company or (y) nominated for election by a majority
of the remaining members of the board of directors of the Company, shall cease for any
reason to constitute a majority of the board of directors of the Company; or
(h) Any ERISA Event shall have occurred with respect to a Plan or any Termination Event
shall have occurred with respect to a Canadian Pension Plan, and the sum (determined as of
the date of occurrence of such ERISA Event or Termination Event, as applicable) of (i) the
Insufficiency of such Plan and the Insufficiency of any and all other Plans with respect to
which an ERISA Event shall have occurred and then exist (or the liability of the Loan
Parties and the ERISA Affiliates related to such ERISA Event), and (ii) the wind-up unfunded
liability of such Canadian Pension Plan and the wind-up unfunded liability of any and all
other Canadian Pension Plans with respect to which a Termination Event shall have occurred,
exceeds $50,000,000; or Any Loan Party or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to such
Multiemployer Plan in an amount that, when aggregated with all other amounts required to be
paid to Multiemployer Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds $50,000,000; or
(i) Any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred Withdrawal Liability to such Multiemployer Plan in
an amount that, when aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined as of
the date of such notification), exceeds $50,000,000; or
(j) Any Loan Party or any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that such Multiemployer Plan is in reorganization, insolvent or is being
terminated,
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within the meaning of Title IV of ERISA, or has been determined to be in
“endangered” or “critical” status within the meaning of Section 432 of the Code or Section
305 of ERISA, and as a result of such reorganization, insolvency or termination or
determination, the aggregate annual contributions of the Loan Parties and the ERISA
Affiliates to all Multiemployer Plans that are then in reorganization, insolvent, being
terminated or in endangered or critical status have been or will be increased over the
amounts contributed to such Multiemployer Plans for the plan years of such Multiemployer
Plans immediately preceding the plan year in which such reorganization, insolvency
termination or determination, occurs by an amount exceeding $50,000,000; or
(k) Any provision of any Collateral Document material to the substantial realization of
the rights of the Lenders under the Collateral Documents taken as a whole, or any provision
of any other Loan Document after delivery thereof pursuant to Section 3.01 or 5.01(i) or (j)
shall for any reason cease to be valid and binding on or enforceable against any Loan Party
party to it, or any such Loan Party shall so state in writing; or
(l) Any Collateral Document or financing statement after delivery thereof pursuant to
Section 3.01 or 5.01(i) or (j) shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first priority lien on and security interest
in the Collateral (other than the Specified Collateral as set forth in Section 6(m) of the
US Security Agreement and Section 6(m) of the Canadian Security Agreement) purported to be
covered thereby;
then, and in any such event, the Agent (i) shall at the request, or may with the consent, of the
Required Lenders, by notice to the Company, declare the obligation of each Lender to make Advances
(other than Advances to be made by an Issuing Bank or a Lender pursuant to Section 2.03(c)) and of
the Issuing Banks to issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the Required Lenders, by
notice to the Company, declare the Advances, all interest thereon and all other amounts payable
under this Agreement to be forthwith due and payable, whereupon the Advances, all such interest and
all such amounts shall become and be forthwith due and payable, without presentment, demand,
protest or further notice of any kind, all of which are hereby expressly waived by each Borrower;
provided, however, that in the event of an actual or deemed entry of an order for
relief with respect to any Borrower under the Federal Bankruptcy Code, (A) the obligation of each
Lender to make Advances (other than Advances to be made by an Issuing Bank or a Lender pursuant to
Section 2.03(c)) and of the Issuing Banks to issue Letters of Credit shall automatically be
terminated and (B) the Advances, all such interest and all such amounts shall automatically become
and be due and payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by each Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default. If any Event
of Default shall have occurred and be continuing, the Agent may with the consent, or shall at the
request, of the Required Lenders, irrespective of whether it is taking any of the actions described
in Section 6.01, make demand upon the Borrowers to, and forthwith upon such demand the Borrowers
will, (a) pay to the Agent on behalf of the Lenders in same day funds at the Agent’s office
designated in such demand, for deposit in the L/C Cash Deposit Account, an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding or (b) make such other
arrangements in respect of the outstanding Letters of Credit as shall be acceptable to the Agent
and not more disadvantageous to the Borrowers than clause (a); provided, however,
that in the event of an actual or deemed entry of an order for relief with respect to the Company
under the Federal Bankruptcy Code, an amount equal to the aggregate Available Amount of all
outstanding Letters of Credit shall be immediately due and payable to the Agent for the account of
the Lenders without notice to or demand upon the Borrowers, which are expressly waived by the
Borrowers, to be held in the L/C Cash Deposit Account. If at any time an Event of Default is
continuing the Agent determines that any funds held in the L/C Cash Deposit Account are subject to
any right or claim of any Person other than the Agent and the Lenders or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit, then the Borrowers
will, forthwith upon demand by the Agent, pay to the Agent, as additional funds to be deposited and
held in the L/C Cash Deposit Account, an amount equal to the excess of (i) such aggregate Available
Amount over (ii) the total amount of funds, if any, then held in the L/C Cash Deposit Account that
the Agent determines to be free and clear of any such right and claim. Upon the drawing of any
Letter of Credit, to the extent funds are on deposit in the L/C Cash Deposit Account, such funds
shall be applied to reimburse the Issuing Banks to the extent permitted by applicable law. After
all such Letters of Credit shall have
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expired or been fully drawn upon, if at such time (x) no
Event of Default is continuing or (y) all other obligations of the Company hereunder and under the
Notes shall have been paid in full, the balance, if any, in such L/C Cash Deposit Account shall be
returned to the Borrowers.
SECTION 6.03. Collection Allocation Mechanism.
(a) On the CAM Exchange Date, (i) each Lender holding US Revolving Credit Commitments shall
immediately be deemed to have acquired (and shall promptly make payment therefor to the Agent in
accordance with Section 2.03) participations in the outstanding amount of US Letter of Credit
Obligations with respect to each US Letter of Credit in an amount equal to such Lender’s Ratable
Share of the aggregate amount available to be drawn under such US Letter of Credit and (ii) the
Lenders shall automatically and without further act (and without regard to the provisions of
Section 9.08) be deemed to have exchanged interests in the Advances and participations in the
Letters of Credit, such that in lieu of the interest of each Lender in each Advance, and Letter of
Credit Obligations in which it shall participate as of such date (including such Lender’s interest
in the Obligations, Guaranties and Collateral of each Loan Party in respect of each such Advance
and Letter of Credit Obligations), such Lender shall hold an interest in every one of the Advances
and a participation in all of the Letter of Credit Obligations (including the Obligations,
Guaranties and Collateral of each Loan Party in respect of each such Advance), whether or not such
Lender shall previously have participated therein, equal to such Lender’s CAM Percentage thereof.
Each Lender and each Loan Party hereby consents and agrees to the CAM Exchange, and each Lender
agrees that the CAM Exchange shall be binding upon its successors and assigns and any person that
acquires a participation in its interests in any Loan or any participation in any Letter of Credit.
Each Loan Party agrees from time to time to execute and deliver to the Agent all such promissory
notes and other instruments and documents as the Agent shall reasonably request to evidence and
confirm the respective interests of the Lenders after giving effect to the CAM Exchange, and each
Lender agrees to surrender any promissory notes originally received by it in connection with its
Loans hereunder to the Agent against delivery of any promissory notes evidencing its interests in
the Loans so executed and delivered; provided, however, that the failure of any
Loan Party to execute or deliver or of any Lender to accept any such promissory note, instrument or
document shall not affect the validity or effectiveness of the CAM Exchange.
(b) As a result of the CAM Exchange, upon and after the CAM Exchange Date, each payment
received by the Agent pursuant to any Loan Document in respect of any of the Obligations, and each
distribution made by the Agent in respect of the Obligations, shall be distributed to the Lenders
pro rata in accordance with their respective CAM Percentages. Any direct payment received by a
Lender upon or after the CAM Exchange Date, including by way of setoff, in respect of an Obligation
shall be paid over to the Agent for distribution to the Lenders in accordance herewith.
(c) The provisions of this Section 6.03 are solely an agreement among the Lenders for the
purpose of allocating risk and the Borrowers have no additional obligations with respect thereto.
SECTION 6.04. Application of Funds. After the exercise of remedies provided for in
Section 6.01 (or after the Advances have become immediately due and payable and the Letters of
Credit have been required to be cash collateralized as set forth in Section 6.02), any amounts
received by the Agent on account of the Obligations shall be applied by the Agent in the following
order:
(a) With respect to amounts received from or on account of the Company, or in respect of any US
Collateral,
First, to payment of that portion of the US Obligations constituting fees,
indemnities, expenses and other amounts (including fees, charges and disbursements of
counsel to the Agent and amounts payable under Article II) payable to the Agent in its
capacity as such;
Second, to payment of that portion of the US Obligations constituting fees,
indemnities and other amounts (other than principal, interest, US Letter of Credit fees and
commitment fees) payable to the US Lenders and the US Issuing Banks (including fees, charges
and disbursements of counsel to the respective US Lenders and the US Issuing Banks payable
under the Loan Documents and amounts payable under
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Article II (in each case, other than fees, indemnities and other amounts, and amounts then payable under Article II, arising
under US Secured Agreements), ratably among them in proportion to the respective amounts
described in this clause Second payable to them;
Third, to payment of that portion of the US Obligations constituting accrued
and unpaid US Letter of Credit fees, commitment fees and interest on the US Advances,
unreimbursed amounts under US Letters of Credit and other U.S. Obligations arising under the
Loan Documents, ratably among the US Lenders and the US Issuing Banks in proportion to the respective amounts described in this clause
Third payable to them;
Fourth, (i) to payment of that portion of the US Obligations constituting
unpaid principal of the U.S. Advances, unreimbursed amounts under US Letters of Credit and
US Secured Agreements and (ii) to the Agent for the account of the US Issuing Banks, to cash
collateralize that portion of US Letter of Credit Obligations comprising the aggregate
undrawn amount of US Letters of Credit, ratably among the US Lenders and the US Issuing
Banks in proportion to the respective amounts described in this clause Fourth held
by them;
Fifth, to the Canadian Obligations in the order set forth in Section 6.04(b);
and
Last, the balance, if any, after all of the US Obligations have been paid in
full in cash, to the Borrowers or as otherwise required by law.
(b) With respect to amounts received from or on account of any Canadian Loan Party or in respect of
any Canadian Collateral, or, after all of the US Obligations set forth in clauses first
through fourth above have been paid in full in cash in accordance with Section 6.03(a),
from or on account of any U.S. Loan Party, or in respect of any US Collateral,
First, to payment of that portion of the Canadian Obligations constituting
fees, indemnities, expenses and other amounts (including fees, charges and disbursements of
counsel to the Agent and amounts payable under Article II) payable to the Agent in its
capacity as such;
Second, to payment of that portion of the Canadian Obligations constituting
fees, indemnities and other amounts (other than principal, interest and commitment fees)
payable to the Canadian Lenders (including fees, charges and disbursements of counsel to the
respective Canadian Lenders arising under the Loan Documents and amounts payable under
Article II (in each case, other than fees, indemnities and other amounts, and amounts then
payable under Article II, arising under Canadian Secured Agreements), ratably among them in
proportion to the respective amounts described in this clause Second payable to
them;
Third, to payment of that portion of the Canadian Obligations constituting
accrued and unpaid commitment fees and interest on the Canadian Advances and other Canadian
Obligations arising under the Loan Documents, ratably among the Canadian Lenders in
proportion to the respective amounts described in this clause Third payable to them;
Fourth, to payment of that portion of the Canadian Obligations constituting
unpaid principal of the Canadian Advances and Canadian Secured Agreements, ratably among the
Canadian Lenders in proportion to the respective amounts described in this clause
Fourth held by them; and
Last, the balance, if any, after all of the Obligations have been paid in full
in cash, to the Borrowers or as otherwise required by law.
Subject to Section 6.02, amounts used to cash collateralize the aggregate undrawn amount of Letters
of Credit pursuant to Section 6.04(a), clause Fourth above, shall be applied to satisfy drawings
under such Letters of Credit as they occur. If any amount remains on deposit as cash collateral
after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be
applied to the other Obligations, if any, in the order set forth above.
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Any amounts received by any Co-Collateral Agent on account of the Obligations (including pursuant
to any exercise of remedies by any Co-Collateral Agent) shall be promptly remitted to the Agent for
application to the Obligations in accordance with this Section 6.04.
Notwithstanding the foregoing, Obligations arising under Secured Agreements shall be excluded from
the application described above if the Agent has not received written notice thereof, together with
such supporting documentation as the Agent may reasonably request, from the applicable holder of such Obligations.
Each holder of Obligations under a Secured Agreement not a party to this Agreement that has given
the notice contemplated by the preceding sentence shall, by such notice, be deemed to have
acknowledged and accepted the appointment of the Agent pursuant to the terms of Article VIII hereof
for itself and its Affiliates as if a “Lender” party hereto.
ARTICLE VII
SECTION 7.01. Guaranty; Limitation of Liability. (a) (i) Each of the Company and each
US Subsidiary Guarantor, jointly and severally, hereby absolutely, unconditionally and irrevocably
guarantees the punctual payment when due, whether at scheduled maturity or on any date of a
required prepayment or by acceleration, demand or otherwise, of all obligations of each other Loan
Party and each other Subsidiary of the Company now or hereafter existing under or in respect of the
Loan Documents or any Secured Agreement (including, without limitation, any extensions,
modifications, substitutions, amendments or renewals of any or all of the foregoing obligations),
whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums,
fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being
the “Comprehensive Guaranteed Obligations”), and agrees to pay any and all expenses
(including, without limitation, reasonable fees and expenses of counsel) incurred by the Agent or
any other Lender in enforcing any rights under this Guaranty or any other Loan Document. Without
limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts
that constitute part of the Comprehensive Guaranteed Obligations and would be owed by any other
Loan Party or Subsidiary of the Company, as applicable, to the Agent or any Lender under or in
respect of the Loan Documents or any Secured Agreement but for the fact that they are unenforceable
or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding
involving such other Loan Party or Subsidiary, as the case may be.
(ii) Each of the Company and each Canadian Subsidiary Guarantor, jointly and severally,
hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due,
whether at scheduled maturity or on any date of a required prepayment or by acceleration,
demand or otherwise, of all obligations of each Canadian Loan Party now or hereafter
existing under or in respect of the Loan Documents or any Secured Agreement (including,
without limitation, any extensions, modifications, substitutions, amendments or renewals of
any or all of the foregoing obligations), whether direct or indirect, absolute or
contingent, and whether for principal, interest, premiums, fees, indemnities, contract
causes of action, costs, expenses or otherwise (such obligations being the “Canadian
Guaranteed Obligations”), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the Agent or any other
Lender in enforcing any rights under this Guaranty or any other Loan Document against such
Guarantor. Without limiting the generality of the foregoing, each Guarantor’s liability
shall extend to all amounts that constitute part of the Canadian Guaranteed Obligations and
would be owed by any other Loan Party to the Agent or any Lender under or in respect of the
Loan Documents by a Canadian Loan Party but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar proceeding
involving such other Loan Party.
(b) Each Guarantor, and by its acceptance of this Guaranty, the Agent and each other Lender,
hereby confirms that it is the intention of all such Persons that this Guaranty and the obligations
of each US Subsidiary Guarantor and each Canadian Subsidiary Guarantor hereunder not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent
applicable to this Guaranty and the obligations of such Guarantor hereunder. To effectuate the
foregoing intention, the Agent, the Lenders and the Guarantors hereby irrevocably agree that the
obligations of such Guarantor under this Guaranty at any time shall be limited to
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the maximum amount as will result in the obligations of such Guarantor under this Guaranty not constituting a
fraudulent transfer or conveyance.
(c) (i) Each US Subsidiary Guarantor hereby unconditionally and irrevocably agrees that in the
event any payment shall be required to be made to the Agent or any Lender under this Guaranty or
any guaranty supplement of the Comprehensive Guaranteed Obligations, such US Subsidiary Guarantor
will contribute, to the maximum extent permitted by law, such amounts to each other US Subsidiary
Guarantor and each other guarantor so as to maximize the aggregate amount paid to the Agent and the Lenders under or in respect
of the Loan Documents.
(ii) Each Canadian Subsidiary Guarantor hereby unconditionally and irrevocably agrees
that in the event any payment shall be required to be made to the Agent or any Lender under
this Guaranty or any guaranty supplement of the Canadian Guaranteed Obligations, such
Canadian Subsidiary Guarantor will contribute, to the maximum extent permitted by law, such
amounts to each other Canadian Subsidiary Guarantor and each other guarantor so as to
maximize the aggregate amount paid to the Agent and the Lenders under or in respect of the
Loan Documents.
SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees that the applicable
Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents,
regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting
any of such terms or the rights of the Agent or any Lender with respect thereto. The obligations
of each Guarantor under or in respect of this Guaranty are independent of the applicable Guaranteed
Obligations or any other obligations of any other Loan Party under or in respect of the Loan
Documents, and a separate action or actions may be brought and prosecuted against each Guarantor to
enforce this Guaranty, irrespective of whether any action is brought against any Borrower or any
other Loan Party or whether any Borrower or any other Loan Party is joined in any such action or
actions. The liability of each Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it may now
have or hereafter acquire in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of any Loan Document or any agreement or
instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all
or any of the applicable Guaranteed Obligations or any other obligations of any other Loan
Party under or in respect of the Loan Documents, or any other amendment or waiver of or any
consent to departure from any Loan Document, including, without limitation, any increase in
the applicable Guaranteed Obligations resulting from the extension of additional credit to
any Loan Party or any of its Subsidiaries or otherwise;
(c) any taking, exchange, release or non-perfection of any Collateral or any other
collateral, or any taking, release or amendment or waiver of, or consent to departure from,
any other guaranty, for all or any of the applicable Guaranteed Obligations;
(d) any manner of application of Collateral or any other collateral, or proceeds
thereof, to all or any of the applicable Guaranteed Obligations or any manner of sale or
other disposition of any Collateral or any other collateral for all or any of the applicable
Guaranteed Obligations or any other obligations of any Loan Party under the Loan Documents
or any other assets of any Loan Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or existence of
any Loan Party or any of its Subsidiaries;
(f) any failure of the Agent or any Lender to disclose to any Loan Party any
information relating to the business, condition (financial or otherwise), operations,
performance, properties or prospects of any other Loan Party now or hereafter known to the
Agent or such Lender (each Guarantor waiving any duty on the part of the Agent and the
Lenders to disclose such information);
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(g) the failure of any other Person to execute or deliver this Agreement, any
Guaranty Supplement or any other guaranty or agreement or the release or reduction of
liability of any Guarantor or other guarantor or surety with respect to the applicable
Guaranteed Obligations; or
(h) any other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by the Agent or any Lender that might
otherwise constitute a defense available to, or a discharge of, any Loan Party or any other
guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time
any payment of any of the applicable Guaranteed Obligations is rescinded or must otherwise be
returned by the Agent or any Lender or any other Person upon the insolvency, bankruptcy or
reorganization of the applicable Borrower or any other Loan Party or otherwise, all as though such
payment had not been made.
SECTION 7.03. Waivers and Acknowledgments. (a) Each Guarantor hereby unconditionally
and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for
performance, notice of nonperformance, default, acceleration, protest or dishonor and any other
notice with respect to any of the applicable Guaranteed Obligations and this Guaranty and any
requirement that the Agent or any Lender protect, secure, perfect or insure any Lien or any
property subject thereto or exhaust any right or take any action against any Loan Party or any
other Person or any Collateral.
(b) Each Guarantor hereby unconditionally and irrevocably waives any right to revoke this
Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all applicable
Guaranteed Obligations whether existing now or in the future.
(c) Each Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by
reason of any claim or defense based upon an election of remedies by the Agent or any Lender that
in any manner impairs, reduces, releases or otherwise adversely affects the subrogation,
reimbursement, exoneration, contribution or indemnification rights of such Guarantor or other
rights of such Guarantor to proceed against any of the other Loan Parties, any other guarantor or
any other Person or any Collateral and (ii) any defense based on any right of set-off or
counterclaim against or in respect of the obligations of such Guarantor hereunder.
(d) Each Guarantor hereby unconditionally and irrevocably waives any duty on the part of the
Agent or any Lender to disclose to such Guarantor any matter, fact or thing relating to the
business, condition (financial or otherwise), operations, performance, properties or prospects of
any other Loan Party or any of its Subsidiaries now or hereafter known by the Agent or such Lender.
(e) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits
from the financing arrangements contemplated by the Loan Documents and that the waivers set forth
in Section 7.02 and this Section 7.03 are knowingly made in contemplation of such benefits.
SECTION 7.04. Subrogation. Each Guarantor hereby unconditionally and irrevocably
agrees not to exercise any rights that it may now have or hereafter acquire against any Borrower,
any other Loan Party or any other insider guarantor that arise from the existence, payment,
performance or enforcement of such Guarantor’s obligations under or in respect of this Guaranty or
any other Loan Document, including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right to participate in any claim or remedy of
the Agent or any Lender against any Borrower, any other Loan Party or any other guarantor of some
or all of the Guaranteed Obligations or any Collateral, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without limitation, the right
to take or receive from any Borrower, any other Loan Party or any other insider guarantor, directly
or indirectly, in cash or other property or by set-off or in any other manner, payment or security
on account of such claim, remedy or right, unless and until all of the applicable Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been paid in full in cash,
all Letters of Credit shall have expired or been terminated and the Commitments shall have expired
or been terminated. If any amount shall be paid to any Guarantor in violation of the immediately
preceding sentence at any time prior to the latest of (a) the payment in full in cash of the
applicable Guaranteed Obligations and all other amounts payable under this Guaranty, (b) the
Termination Date and (c) the latest date of expiration or termination of all Letters of Credit,
such amount shall be received and held in trust for the benefit of the Agent and the Lenders, shall
be segregated from other property and funds of such Guarantor and shall forthwith be paid or
delivered to the
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Agent in the same form as so received (with any necessary endorsement or assignment) to be
credited and applied to the applicable Guaranteed Obligations and all other amounts payable under
this Guaranty by such Guarantor, whether matured or unmatured, in accordance with the terms of the
Loan Documents, or to be held as Collateral for any applicable Guaranteed Obligations or other
amounts payable under this Guaranty by such Guarantor thereafter arising. If (i) any Guarantor
shall make payment to the Agent or any Lender of all or any part of the applicable Guaranteed
Obligations, (ii) all of the applicable Guaranteed Obligations and all other amounts payable under
this Guaranty by such Guarantor shall have been paid in full in cash, (iii) the Termination Date
shall have occurred and (iv), all Letters of Credit shall have expired or been terminated, the
Agent and the Lenders will, at such Guarantor’s request and expense, execute and deliver to such
Guarantor appropriate documents, without recourse and without representation or warranty, necessary
to evidence the transfer by subrogation to such Guarantor of an interest in the applicable
Guaranteed Obligations resulting from such payment made by such Guarantor pursuant to this
Guaranty.
SECTION 7.05. Guaranty Supplements. (b) Upon the execution and delivery by any
Person of a guaranty supplement in substantially the form of Exhibit F hereto (each, a
“Guaranty Supplement”), (a) such Person shall be referred to as an “Additional
Guarantor” and shall become and be a Guarantor hereunder, and each reference in this Guaranty
to a “Guarantor” shall also mean and be a reference to such Additional Guarantor, and each
reference in any other Loan Document to a “US Subsidiary Guarantor” or a “Canadian Subsidiary
Guarantor”, as applicable, shall also mean and be a reference to such Additional Guarantor, and (b)
each reference herein to “this Guaranty,” “hereunder,” “hereof” or words of like import referring
to this Guaranty, and each reference in any other Loan Document to the “Guaranty,” “thereunder,”
“thereof” or words of like import referring to this Guaranty, shall mean and be a reference to this
Guaranty as supplemented by such Guaranty Supplement.
SECTION 7.06.
Subordination. (a) Each Guarantor hereby subordinates any and all
debts, liabilities and other obligations owed to such Guarantor by each other Loan Party (the
“
Subordinated Obligations”) to the applicable Guaranteed Obligations to the extent and in
the manner hereinafter set forth in this Section 7.06:
(b)
Prohibited Payments, Etc. Except during the continuance of an Event of Default,
each Guarantor may receive regularly scheduled payments from any other Loan Party on account of the
Subordinated Obligations. After the occurrence and during the continuance of any Event of Default,
however, unless the Required Lenders otherwise agree, no Guarantor shall demand, accept or take any
action to collect any payment on account of the Subordinated Obligations.
(c)
Prior Payment of Guaranteed Obligations. In any proceeding under any Bankruptcy
Law relating to any other Loan Party, each Guarantor agrees that the Lenders shall be entitled to
receive payment in full in cash of all applicable Guaranteed Obligations (including all interest
and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or
not constituting an allowed claim in such proceeding (“
Post-Petition Interest”)) before
such Guarantor receives payment of any Subordinated Obligations.
(d)
Turn-Over. After the occurrence and during the continuance of any Event of
Default, each Guarantor shall, if the Agent (with the consent or at the direction of the Required
Lenders) so requests, collect, enforce and receive payments on account of the Subordinated
Obligations as trustee for the Agent and the Lenders and deliver such payments to the Agent on
account of the applicable Guaranteed Obligations (including all Post-Petition Interest), together
with any necessary endorsements or other instruments of transfer, but without reducing or affecting
in any manner the liability of such Guarantor under the other provisions of this Guaranty.
(e)
Agent Authorization. After the occurrence and during the continuance of any Event
of Default, the Agent is authorized and empowered (but without any obligation to so do), in its
discretion, (i) in the name of each Guarantor, to collect and enforce, and to submit claims in
respect of, the Subordinated Obligations and to apply any amounts received thereon to the
applicable Guaranteed Obligations (including any and all Post-Petition Interest), and (ii) to
require each Guarantor (A) to collect and enforce, and to submit claims in respect of, the
Subordinated Obligations and (B) to pay any amounts received on such obligations to the Agent for
application to the applicable Guaranteed Obligations (including any and all Post-Petition
Interest).
SECTION 7.07.
Continuing Guaranty; Assignments. This Guaranty is a continuing
guaranty and shall (a) except as provided in the next succeeding sentence, remain in full force and
effect until the latest of (i) the payment in full in cash of the applicable Guaranteed Obligations
and all other amounts payable under this Guaranty, (ii) the Termination Date and (iii) the latest
date of expiration or termination of all Letters of Credit, (b) be binding
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upon each Guarantor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Agent and the Lenders and their successors, permitted transferees and permitted
assigns. Upon the sale of a Guarantor or any or all of the assets of any Guarantor to the extent
permitted in accordance with the terms of the Loan Documents or upon such Guarantor otherwise
ceasing to be a Subsidiary of the Company organized under the laws of a state of the United States
of America or Canada (or a province thereof) without violation of the terms of this Agreement, such
Guarantor (and its Subsidiaries) or such assets shall be automatically released from this Guaranty
or any Guaranty Supplement, and all pledges and security interests of the equity of such Guarantor
or any Subsidiary of such Guarantor and all other pledges and security interests in the assets of
such Guarantor and any of its Subsidiaries shall be released as provided in Section 9.14. Without
limiting the generality of clause (c) above, the Agent or any Lender may assign or otherwise
transfer all or any portion of its rights and obligations under this Agreement (including, without
limitation, all or any portion of its Commitments, the Advances owing to it and any Note or Notes
held by it) to any other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise, in each case as and to the
extent provided in Section 9.08. No Guarantor shall have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
ARTICLE VIII
SECTION 8.01.
Authorization and Action. (a) Pursuant to Section 8.12, each Lender
hereby irrevocably appoints Bank of America to act on its behalf as the Agent hereunder and under
the other Loan Documents and authorizes the Agent to take such actions on its behalf and to
exercise such powers as are delegated to the Agent by the terms hereof or thereof, together with
such actions and powers as are reasonably incidental thereto.
(b) Each Lender hereby further irrevocably appoints each of Bank of America and Citicorp USA,
Inc. to act on its behalf as a Co-Collateral Agent hereunder and under the other Loan Documents and
authorizes the Co-Collateral Agents to take such actions on its behalf and to exercise such powers
as are delegated to the Co-Collateral Agents by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. Each Co-Collateral Agent shall act on
behalf of the Lenders and shall have all of the benefits and immunities (i) provided to the Agent
in this Article VIII with respect to any acts taken or omissions suffered by such Co-Collateral
Agent in connection with its activities in such capacity as fully as if the term “Agent” as used in
this Article VIII included such Co-Collateral Agent with respect to such acts or omissions, and
(ii) as additionally provided herein with respect to such Co-Collateral Agent.
(c) The provisions of this Article are solely for the benefit of the Agent, the Issuing Banks,
the Co-Collateral Agents and the Lenders, and neither any Borrower nor any other Loan Party shall
have rights as a third party beneficiary of any of such provisions.
SECTION 8.02.
Agent Individually. (a) The Person serving as the Agent hereunder
shall have the same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Agent and the term “Lender” or “Lenders” shall, unless
otherwise expressly indicated or unless the context otherwise requires, include the Person serving
as the Agent hereunder in its individual capacity. Such Person and its Affiliates may accept
deposits from, lend money to, act as the financial advisor or in any other advisory capacity for
and generally engage in any kind of business with the Borrowers or any of their Subsidiaries or
other Affiliate thereof as if such Person were not the Agent hereunder and without any duty to
account therefor to the Lenders.
(b) Each Lender understands that the Person serving as Agent, acting in its individual
capacity, and its Affiliates (collectively, the “Agent’s Group”) are engaged in a wide
range of financial services and businesses (including investment management, financing, securities
trading, corporate and investment banking and research) (such services and businesses are
collectively referred to in this Section 8.02 as “Activities”) and may engage in the
Activities with or on behalf of one or more of the Loan Parties or their respective Affiliates.
Furthermore, the Agent’s Group may, in undertaking the Activities, engage in trading in financial
products or undertake other investment businesses for its own account or on behalf of others
(including the Loan Parties and
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their Affiliates and including holding, for its own account or on behalf of others, equity,
debt and similar positions in the Borrowers, another Loan Party or their respective Affiliates),
including trading in or holding long, short or derivative positions in securities, loans or other
financial products of one or more of the Loan Parties or their Affiliates. Each Lender understands
and agrees that in engaging in the Activities, the Agent’s Group may receive or otherwise obtain
information concerning the Loan Parties or their Affiliates (including information concerning the
ability of the Loan Parties to perform their respective Obligations hereunder and under the other
Loan Documents) which information may not be available to any of the Lenders that are not members
of the Agent’s Group. None of the Agent nor any member of the Agent’s Group shall have any duty to
disclose to any Lender or use on behalf of the Lenders, and shall not be liable for the failure to
so disclose or use, any information whatsoever about or derived from the Activities or otherwise
(including any information concerning the business, prospects, operations, property, financial and
other condition or creditworthiness of any Loan Party or any Affiliate of any Loan Party) or to
account for any revenue or profits obtained in connection with the Activities, except that the
Agent shall deliver or otherwise make available to each Lender such documents as are expressly
required by any Loan Document to be transmitted by the Agent to the Lenders.
(c) Each Lender further understands that there may be situations where members of the Agent’s
Group or their respective customers (including the Loan Parties and their Affiliates) either now
have or may in the future have interests or take actions that may conflict with the interests of
any one or more of the Lenders (including the interests of the Lenders hereunder and under the
other Loan Documents). Each Lender agrees that no member of the Agent’s Group is or shall be
required to restrict its activities as a result of the Person serving as Agent being a member of
the Agent’s Group, and that each member of the Agent’s Group may undertake any Activities without
further consultation with or notification to any Lender. None of (i) this Agreement nor any other
Loan Document, (ii) the receipt by the Agent’s Group of information (including Borrower
Information) concerning the Loan Parties or their Affiliates (including information concerning the
ability of the Loan Parties to perform their respective Obligations hereunder and under the other
Loan Documents) nor (iii) any other matter shall give rise to any fiduciary, equitable or
contractual duties (including without limitation any duty of trust or confidence) owing by the
Agent or any member of the Agent’s Group to any Lender including any such duty that would prevent
or restrict the Agent’s Group from acting on behalf of customers (including the Loan Parties or
their Affiliates) or for its own account.
SECTION 8.03.
Duties of Agent; Exculpatory Provisions. (a) The Agent’s duties
hereunder and under the other Loan Documents are solely ministerial and administrative in nature
and the Agent shall not have any duties or obligations except those expressly set forth herein and
in the other Loan Documents. Without limiting the generality of the foregoing, (i) the Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (ii) the Agent shall not have any duty to take any discretionary action
or exercise any discretionary powers, except discretionary rights and powers expressly contemplated
hereby or by the other Loan Documents that the Agent is required to exercise as directed in writing
by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents),
provided that the Agent shall not be
required to take any action that, in its opinion or the opinion of its counsel, may expose the
Agent or any of its Affiliates to liability or that is contrary to any Loan Document or applicable
law and (iii) the Agent shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any
information relating to the Company or any of its Affiliates that is communicated to or obtained by
the Person serving as the Agent or any of its Affiliates in any capacity.
(b) The Agent shall not be liable for any action taken or not taken by it (i) with the consent
or at the request of the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary, or as the Agent shall believe in good faith shall be necessary, under the
circumstances as provided in Sections 9.01 or 9.03) or (ii) in the absence of its own gross
negligence or willful misconduct. The Agent shall be deemed not to have knowledge of any Default
or the event or events that give or may give rise to any Default unless and until the Company or
any Lender shall have given notice to the Agent describing such Default and such event or events.
(c) Neither the Agent nor any member of the Agent’s Group shall be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty, representation or other information
made or supplied in or in connection with this Agreement, any other Loan Document or the
information presented to the other Lenders by the Company, (ii) the contents of any certificate,
report or other document delivered hereunder or
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thereunder or in connection herewith or therewith or the adequacy, accuracy and/or
completeness of the information contained therein, (iii) the performance or observance of any of
the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or the perfection
or priority of any Lien or security interest created or purported to be created by the Collateral
Documents or (v) the satisfaction of any condition set forth in Article III or elsewhere herein,
other than (but subject to the foregoing clause (ii)) to confirm receipt of items expressly
required to be delivered to the Agent.
(d) Nothing in this Agreement or any other Loan Document shall require the Agent or any of its
Related Parties to carry out any “know your customer” or other checks in relation to any Person on
behalf of any Lender and each Lender confirms to the Agent that it is solely responsible for any
such checks it is required to carry out and that it may not rely on any statement in relation to
such checks made by the Agent or any of its Related Parties.
SECTION 8.04.
Reliance by Agent. The Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. The Agent also may rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be
fulfilled to the satisfaction of a Lender, the Agent may presume that such condition is
satisfactory to such Lender unless an officer of the Agent responsible for the transactions
contemplated hereby shall have received notice to the contrary from such Lender prior to the making
of such Loan or the issuance of such Letter of Credit, and in the case of a Borrowing, such Lender
shall not have made available to the Agent such Lender’s ratable portion of such Borrowing. The
Agent may consult with legal counsel (who may be counsel for the Company or any other Loan Party),
independent accountants and other experts selected by it, and shall not be liable for any action
taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
SECTION 8.05.
Indemnification. (a) Each Lender severally agrees to indemnify the
Agent (to the extent not promptly reimbursed by the Company) from and against such Lender’s Ratable
Share of any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising out of this Agreement
or any action taken or omitted by the Agent under this Agreement (collectively, the
“
Indemnified Costs”), provided that no Lender shall be liable for any portion of the
Indemnified Costs resulting from the Agent’s gross negligence or willful misconduct as found in a
non-appealable judgment by a court of competent jurisdiction. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable share of any
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, to the extent that the Agent is not
promptly reimbursed for such expenses by the Company. In the case of any investigation, litigation
or proceeding giving rise to any Indemnified Costs, this Section 8.05 applies whether any such
investigation, litigation or proceeding is brought by the Agent, any Lender or a third party.
(b) Each Lender severally agrees to indemnify the Issuing Banks (to the extent not promptly
reimbursed by the Company) from and against such Lender’s Ratable Share of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on, incurred by, or asserted
against any such Issuing Bank in any way relating to or arising out of the L/C Related Documents or
any action taken or omitted by such Issuing Bank hereunder or in connection herewith;
provided, however, that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from such Issuing Bank’s gross negligence or willful misconduct as found in
a non-appealable judgment by a court of competent jurisdiction. Without limitation of the
foregoing, each Lender agrees to reimburse any such Issuing Bank promptly upon demand for its
Ratable Share of any costs and expenses (including, without limitation, fees and
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expenses of counsel) payable by the Company under Section 9.04, to the extent that such
Issuing Bank is not promptly reimbursed for such costs and expenses by the Company.
(c) The failure of any Lender to reimburse the Agent or any Issuing Bank promptly upon demand
for its ratable share of any amount required to be paid by the Lenders to the Agent as provided
herein shall not relieve any other Lender of its obligation hereunder to reimburse the Agent or any
Issuing Bank for its ratable share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse the Agent or any Issuing Bank for such other Lender’s
ratable share of such amount. Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender contained in this Section 8.05 shall
survive the payment in full of principal, interest and all other amounts payable hereunder and
under the Notes. Each of the Agent and each Issuing Bank agrees to return to the Lenders their
respective ratable shares of any amounts paid under this Section 8.05 that are subsequently
reimbursed by the Company.
SECTION 8.06.
Delegation of Duties. The Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document by or through any one
or more co-agents or sub-agents appointed by the Agent. The Agent and any such co-agent or
sub-agent may perform any and all of its duties and exercise its rights and powers by or through
their respective Related Parties. Each such co-agent and sub-agent and the Related Parties of the
Agent and each such co-agent and sub-agent (including their respective Affiliates in connection
with the syndication of the Revolving Credit Facility) shall be entitled to the benefits of all
provisions of this Article VIII and Article IX (as though such co-agents and sub-agents were the
“Agent” under the Loan Documents) as if set forth in full herein with respect thereto.
SECTION 8.07.
Resignation of Agent. (a) The Agent may at any time give notice of its
resignation to the Lenders and the Company. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, in consultation with the Company, to appoint a successor,
which shall be a bank with an office in New York, New York, or an Affiliate of any such bank with
an office in New York, New York. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives
notice of its resignation (such 30-day period, the “
Lender Appointment Period”), then the
retiring Agent may on behalf of the Lenders, appoint a successor Agent meeting the qualifications
set forth above. In addition and without any obligation on the part of the retiring Agent to
appoint, on behalf of the Lenders, a successor Agent, the retiring Agent may at any time upon or
after the end of the Lender Appointment Period notify the Company and the Lenders that no
qualifying Person has accepted appointment as successor Agent and the effective date of such
retiring Agent’s resignation. Upon the resignation effective date established in such notice and
regardless of whether a successor Agent has been appointed and accepted such appointment, the
retiring Agent’s resignation shall nonetheless become effective and (i) the retiring Agent shall be
discharged from its duties and obligations as Agent hereunder and under the other Loan Documents
and (ii) all payments, communications and determinations provided to be made by, to or through the
Agent shall instead be made by or to each Lender directly, until such time as the Required Lenders
appoint a successor Agent as provided for above in this paragraph. Upon the acceptance of a
successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with
all of the rights, powers, privileges and duties as Agent of the retiring (or retired) Agent, and
the retiring Agent shall be discharged from all of its duties and obligations as Agent hereunder or
under the other Loan Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Company to a successor Agent shall be the same as those
payable to its predecessor unless otherwise agreed between the Company and such successor. After
the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of
this Article and Section 8.05 and Section 9.04 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Agent was acting as Agent.
(b) Any resignation pursuant to this Section by a Person acting as Agent shall, unless such
Person shall notify the Company and the Lenders otherwise, also act to relieve such Person and its
Affiliates of any obligation to issue new, or extend existing, Letters of Credit where such
issuance or extension is to occur on or after the effective date of such resignation. Upon the
acceptance of a successor’s appointment as Agent hereunder, (i) such successor shall succeed to and
become vested with all of the rights, powers, privileges and duties of the retiring Issuing Bank,
(ii) the retiring Issuing Bank shall be discharged from all of their respective duties and
obligations hereunder or under the other Loan Documents arising on or after the effective date of
such successor’s appointment, and (iii) the successor Issuing Bank shall issue letters of credit in
substitution for the Letters of Credit, if any,
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outstanding at the time of such succession or make other arrangement satisfactory to the
retiring Issuing Bank to effectively assume the obligations of the retiring Issuing Bank with
respect to such Letters of Credit.
(c) Notwithstanding the foregoing, except as otherwise agreed in writing between the
Co-Collateral Agents, Citicorp USA, Inc.’s appointment as Co-Collateral Agent shall automatically
expire on the date that is six months from the Effective Date.
SECTION 8.08.
Non-Reliance on Agent and Other Lenders. (a) Each Lender confirms to
the Agent, each other Lender and each of their respective Related Parties that it (i) possesses
(individually or through its Related Parties) such knowledge and experience in financial and
business matters that it is capable, without reliance on the Agent, any other Lender or any of
their respective Related Parties, of evaluating the merits and risks (including tax, legal,
regulatory, credit, accounting and other financial matters) of (x) entering into this Agreement,
(y) making Loans and other extensions of credit hereunder and under the other Loan Documents and
(z) in taking or not taking actions hereunder and thereunder, (ii) is financially able to bear such
risks and (iii) has determined that entering into this Agreement and making Loans and other
extensions of credit hereunder and under the other Loan Documents is suitable and appropriate for
it.
(b) Each Lender acknowledges that (i) it is solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection with this Agreement and the
other Loan Documents, (ii) that it has, independently and without reliance upon the Agent, any
other Lender or any of their respective Related Parties, made its own appraisal and investigation
of all risks associated with, and its own credit analysis and decision to enter into, this
Agreement based on such documents and information, as it has deemed appropriate and (iii) it will,
independently and without reliance upon the Agent, any other Lender or any of their respective
Related Parties, continue to be solely responsible for making its own appraisal and investigation
of all risks arising under or in connection with, and its own credit analysis and decision to take
or not take action under, this Agreement and the other Loan Documents based on such documents and
information as it shall from time to time deem appropriate, which may include, in each case:
(i) the financial condition, status and capitalization of the Company and each other
Loan Party;
(ii) the legality, validity, effectiveness, adequacy or enforceability of this
Agreement and each other Loan Document and any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in connection with any Loan
Document;
(iii) determining compliance or non-compliance with any condition hereunder to the
making of a Loan, or the issuance of a Letter of Credit and the form and substance of all
evidence delivered in connection with establishing the satisfaction of each such condition;
(iv) the adequacy, accuracy and/or completeness of any information delivered by the
Agent, any other Lender or by any of their respective Related Parties under or in connection
with this Agreement or any other Loan Document, the transactions contemplated hereby and
thereby or any other agreement, arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Loan Document.
SECTION 8.09.
No Other Duties, etc. Anything herein to the contrary notwithstanding,
none of the Persons acting as, Arranger or Syndication Agent listed on the cover page hereof shall
have any powers, duties or responsibilities under this Agreement or any of the other Loan
Documents, except in its capacity, as applicable, as the Agent, Co-Collateral Agent or as a Lender
hereunder.
SECTION 8.10.
Agent May File Proofs of Claim. In case of the pendency of any
proceeding under any Bankruptcy Law or any other judicial proceeding relative to any Loan Party,
the Agent (irrespective of whether the principal of any Advance or Letter of Credit Obligation
shall then be due and payable as herein expressed or by declaration or otherwise and irrespective
of whether the Agent shall have made any demand on any Borrower) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
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(a) to file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Advances, Letter of Credit Obligations and all other
Obligations that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders, the Issuing Banks and the Agent
(including any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders, the Issuing Banks and the Agent and their respective agents and counsel and
all other amounts due the Lenders, the Issuing Banks and the Agent hereunder) allowed in
such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, interim receiver, monitor, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Lender and
Issuing Bank to make such payments to the Agent and, if the Agent shall consent to the making of
such payments directly to the Lenders and Issuing Bank, to pay to the Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Agent and its agents and
counsel, and any other amounts due the Agent hereunder.
Nothing contained herein shall be deemed to authorize the Agent to authorize or consent to or
accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement,
adjustment or composition or proposal affecting the Obligations or the rights of any Lender or
Issuing Bank to authorize the Agent to vote in respect of the claim of any Lender or Issuing Bank
or in any such proceeding.
SECTION 8.11.
Intercreditor Arrangements. Each of the Lenders hereby authorizes and
directs the Agent to enter into one or more Intercreditor Agreements on behalf of such Lender and
agrees that the Agent in its various capacities thereunder may take such actions on its behalf as
is contemplated by the terms of any such Intercreditor Agreements. With respect to any
Intercreditor Agreement executed and delivered by the Agent in accordance with this Agreement, each
Lender hereunder (a) consents to any subordination of Liens provided for in such Intercreditor
Agreement, (b) agrees that it will be bound by and will take no actions contrary to the provisions
of such Intercreditor Agreement, (c) authorizes and instructs the Agent to enter into such
Intercreditor Agreement as Agent and on behalf of such Lender and (d) agrees that the Agent may
take such actions on behalf of such Lender as is contemplated by the terms of such Intercreditor
Agreement.
In the event that, in connection with a non-recourse mortgage financing permitted under
Section 5.02(a)(x) and Section 5.02(d)(xvi), a Loan Party grants a Lien on its real property to
secure the Second Lien Obligations (as defined in the Intercreditor Agreement), each Lender hereby
waives any requirement of the Loan Parties under the Intercreditor Agreement to secure the Secured
Obligations with a Lien on such real property. Each of the Lenders hereby authorizes and directs
the Agent, at the Company’s expense, to execute and deliver such documents as may be reasonably
required to evidence such waiver, including one ore more amendments to the Intercreditor Agreement
in form and substance satisfactory to the Agent.
(a) Upon effectiveness of this Agreement, (i) the Existing Agent hereby resigns as Agent under
the Existing Credit Agreement, (ii) the Existing Agent hereby assigns to Bank of America, as the
successor Agent (the “Successor Agent”), without recourse and without representations or
warranties of any kind (express, implied or otherwise), and subject, in the case of any such
rights, powers and privileges, to Section 8.12(c) below, all of the Existing Agent’s rights,
powers, privileges, obligations, responsibilities and duties as Existing Agent under or in respect
of the Existing Credit Agreement (and the Loan Documents as defined therein (the “Existing Loan
Documents”)), including, without limitation, all rights, titles and interests as secured party
or lien holder thereunder or in connection therewith and all collateral, in each case held in its
capacity as Existing Agent (but not as a Lender), and (iii) Bank of America hereby accepts such
appointment as the Successor Agent and assumes all the obligations, responsibilities and duties of
the Existing Agent in accordance with the terms hereof and the other Loan Documents, effective as
of the date hereof, including the assignment to Bank of America of all rights, titles and interests
as secured party or lien holder thereunder or in connection therewith and all collateral, in each
case to be held in such capacities as Successor Agent (but not as a Lender). The Existing Agent
(at the expense of Company) agrees to execute and deliver all further documents, certificates and
instruments, including, without limitation, assignments of
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mortgages, intellectual property agreements, and acknowledgements to deposit account control
agreements, as the Company or the Successor Agent may reasonably request to evidence the assignment
and transfer referred to above. Upon effectiveness of this Agreement, the Existing Agent shall be
discharged from all of its duties, obligations and responsibilities under the Loan Documents. Each
Loan Party and each Lender hereby ratifies the appointment of Bank of America as the Successor
Agent and the retirement by Citicorp USA, Inc. as the Existing Agent.
(b) In furtherance of the foregoing, the Existing Agent hereby assigns to the Successor Agent,
without recourse and without representations or warranties of any kind, all of its rights, titles
and interests under any and all Collateral Documents and UCC and PPSA financing statements or other
similar filings or registrations (and financing statements in any other applicable jurisdictions)
filed by the Existing Agent on behalf of itself and/or the Secured Parties in its capacity as
Existing Agent in connection with the Existing Credit Agreement and the other Existing Loan
Documents. The Successor Agent may file such financing statements, financing change statements and
other documents as it deems necessary or advisable to evidence the assignments made by the Existing
Agent in this Agreement, provided that the Successor Agent shall have no authority to
execute any such documents on behalf of the Existing Agent or otherwise to create or impose any
obligation on or incur any liability on behalf of the Existing Agent.
(c) Anything contained herein to the contrary notwithstanding, (i) the rights of the Existing
Agent, and the obligations of Borrowers, under Article VIII and Section 9.04 of the Existing Credit
Agreement shall survive the resignation of the Existing Agent, the amendment and restatement of the
Existing Credit Agreement effected hereby, the assignment by the Existing Agent to the Successor
Agent of certain rights, powers and privileges hereunder and the effectiveness of this Agreement,
including, without limitation, with respect to all actions taken by the Existing Agent pursuant to
or in connection with the Existing Credit Agreement or any failure to take such actions (in each
case as though the Existing Agent were still the Agent thereunder), and (ii) the assignment by the
Existing Agent to the Successor Agent of certain rights, powers and privileges hereunder shall be
subject to such rights of the Existing Agent under Article VIII and Section 9.04 of the Existing
Credit Agreement.
(d) Notwithstanding the foregoing, (i) Bank of America shall not assume, nor shall Bank of
America be deemed to assume or be responsible for, any obligations of the Existing Agent under or
pursuant to any Loan Document arising prior to the execution and delivery of this Agreement, and
(ii) Citicorp USA, Inc. shall not be responsible for any obligations of the Agent under or pursuant
to any Loan Document arising on or after the effectiveness of this Agreement.
(e) The Loan Parties hereby release any and all claims against the Existing Agent and each
Related Party of the Existing Agent arising out of, in any way connected with, or as a result of
(i) the Existing Agent’s performance of its duties as administrative agent and collateral agent
under the Existing Credit Agreement (and the Existing Loan Documents) and (ii) the Existing Agent’s
resignation as Agent under the Existing Credit Agreement (and the Existing Loan Documents).
(f) The provisions of this Section 8.12 apply notwithstanding any provisions of Section 8.07
to the contrary.
SECTION 8.13.
Secured Agreements. (a) The Company, any Lender and any Affiliate of a
Lender may from time to time designate a qualifying agreement as a Secured Agreement upon written
notice to the Agent from the Company and such Lender or such Affiliate, in form reasonably
acceptable to the Agent, which form shall include a description of such Secured Agreement and the
maximum amount of obligations thereunder which are to constitute Obligations (each, a
“
Designated Amount”);
provided that any such Designated Amount shall constitute
Obligations only to the extent that such Designated Amount, together with all other Designated
Amounts under Secured Agreements theretofore designated hereunder as Obligations, does not exceed,
for all Lenders and their Affiliates, $125,000,000
less the aggregate amount of Commitment
Increases in excess of $75,000,000 theretofore effected hereunder.
(b) The Company and any counterparty to a Secured Agreement may increase, decrease or
terminate any Designated Amount in respect of such Secured Agreement upon written notice to the
Agent; provided that any increase in a Designated Amount shall be deemed to be a new
designation of a Designated Amount and
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shall be subject to the limitations set forth in Section 8.13(a). No obligations under any Secured
Agreement in excess of the applicable Designated Amount shall constitute Obligations hereunder or
the other Loan Documents.
(c) No counterparty to a Secured Agreement that obtains the benefits of Section 6.04, any
Guaranty or any Collateral by virtue of the provisions hereof or of any Guaranty or any Collateral
Document shall have any right to notice of any action or to consent to, direct or object to any
action hereunder or under any other Loan Document or otherwise in respect of the Collateral
(including the release or impairment of any Collateral) other than in its capacity as a Lender and,
in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any
other provision of this Article VIII to the contrary, the Agent shall not be required to verify the
payment of, or that other satisfactory arrangements have been made with respect to, Obligations
arising under Secured Agreements unless the Agent has received written notice of such Obligations,
together with such supporting documentation as the Agent may request, from the applicable
counterparty to a Secured Agreement.
ARTICLE IX
SECTION 9.01. Amendments, Waivers. No amendment or waiver of any provision of this
Agreement or the Notes, nor consent to any departure by any Loan Party therefrom, shall in any
event be effective unless the same shall be in writing and signed by the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that (a) no amendment, waiver or
consent shall, unless in writing and signed by all the Lenders, do any of the following: (i) waive
any of the conditions specified in Section 3.01, (ii) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder, (iii) release all or
substantially all of the Collateral in any transaction or series of related transactions, (iv)
release one or more Guarantors (or otherwise limit such Guarantors’ liability with respect to the
obligations owing to the Agent, the Co-Collateral Agents and the Lenders under the Guaranties) if
such release or limitation is in respect of all or substantially all of the value of the
Guaranties, taken as a whole, to the Lenders, (iv) amend this Section 9.01, or (v) amend, modify or
change the provisions of Section 6.03 or the definition of “CAM Percentage” without the written
consent of each Lender, (b) no amendment, waiver or consent shall, unless in writing and signed by
each Lender affected thereby, do any of the following: (i) increase the Commitment of such Lender,
(ii) reduce or forgive the principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, (iii) postpone any date fixed for any payment of principal of, or interest on,
the Advances or any fees or other amounts payable hereunder, (iv) change the order of application
of any reduction in the Commitments or any prepayment of Advances among the Facilities from the
application thereof set forth in Section 6.04 or (v) change Section 2.05(a) in a manner that would
alter the pro rata reduction or termination of commitments required thereby ; and (c) no amendment,
waiver or consent shall, unless in writing and signed by the Supermajority Lenders, increase the
advance rates set forth in the definition of the term “Loan Value”, add new asset categories to the
Borrowing Base or otherwise cause the Borrowing Base or availability under the Revolving Credit
Facility provided for herein to be increased (other than changes in Reserves implemented by the
Agent in its reasonable discretion); provided further that (x) no amendment, waiver
or consent shall, unless in writing and signed by the Agent in addition to the Lenders required
above to take such action, affect the rights or duties of the Agent under this Agreement or any
Note and (y) no amendment, waiver or consent shall, unless in writing and signed by the Issuing
Banks in addition to the Lenders required above to take such action, adversely affect the rights or
obligations of the Issuing Banks in their capacities as such under this Agreement,
provided, however, notwithstanding clauses (ii) and (iv) of clause (a) above, no
consent or waiver or other approval of any Lender shall be required for any release of a Guaranty
or Guaranty Supplement as provided in Section 7.07 or any release of Collateral as provided in
Section 9.14 or in any Collateral Document.
SECTION 9.02. Notices, Etc.
(a) Notices Generally. Except in the case of notices and other communications
expressly permitted to be given by telephone (and except as provided in subsection (b) below), all
notices and other communications provided for herein shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as
follows, and all notices and other communications
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expressly permitted hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:
(i) if to any Borrower, the Agent, any Co-Collateral Agent or any Issuing Bank, to the
address, telecopier number, electronic mail address or telephone number specified for such Person
on Schedule 9.02; and
(ii) if to any other Lender, to the address, telecopier number, electronic mail address or
telephone number specified in its Administrative Questionnaire (including, as appropriate, notices
delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in
effect for the delivery of notices that may contain material non-public information relating to any
Borrower).
Notices and other communications sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when received; notices and other
communications sent by telecopier shall be deemed to have been given when sent (except that, if not
given during normal business hours for the recipient, shall be deemed to have been given at the
opening of business on the next business day for the recipient). Notices and other communications
delivered through electronic communications to the extent provided in subsection (b) below, shall
be effective as provided in such subsection (b).
(b) Notices and other communications to the Lenders and the Issuing Banks hereunder may be
delivered or furnished by electronic communication (including e-mail and Internet or intranet
websites) pursuant to procedures approved by the Agent, provided that the foregoing shall
not apply to notices to any Lender or Issuing Bank pursuant to Article II if such Lender or Issuing
Bank, as applicable, has notified the Agent that it is incapable of receiving notices under such
Article by electronic communication. The Agent or any Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.
(c) Electronic Communications. Unless the Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received upon the sender’s receipt
of an acknowledgement from the intended recipient (such as by the “return receipt requested”
function, as available, return e-mail or other written acknowledgement), provided that if
such notice or other communication is not sent during the normal business hours of the recipient,
such notice or communication shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and (ii) notices or communications posted to an Internet or
intranet website shall be deemed received upon the deemed receipt by the intended recipient at its
e-mail address as described in the foregoing clause (i) of notification that such notice or
communication is available and identifying the website address therefor.
(d) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT
PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR
THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE
BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR
FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE
BORROWER MATERIALS OR THE PLATFORM. In no event shall the Agent, any Co-Collateral Agent or any of
their respective Related Parties (collectively, the “Agent Parties”) have any liability to
the Borrowers, any Lender, any Issuing Bank or any other Person for losses, claims, damages,
liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of the
Borrowers’ or the Agent’s or Co-Collateral Agents’ transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities or expenses are
determined by a court of competent jurisdiction by a final and nonappealable judgment to have
resulted from the gross negligence or willful misconduct of such Agent Party; provided,
however, that in no event shall any Agent Party have any liability to the Borrowers, any
Lender, any Issuing Bank or any other Person for indirect, special, incidental, consequential or
punitive damages (as opposed to direct or actual damages).
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(e) Change of Address, Etc. Each of the Borrowers, the Agent, each Co-Collateral
Agent and each Issuing Bank may change its address, telecopier or telephone number for notices and
other communications hereunder by notice to the other parties hereto. Each other Lender may change
its address, telecopier or telephone number for notices and other communications hereunder by
notice to the Borrowers and the Agent. In addition, each Lender agrees to notify the Agent from
time to time to ensure that the Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which notices and other
communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each
Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at
all times have selected the “Private Side Information” or similar designation on the content
declaration screen of the Platform in order to enable such Public Lender or its delegate, in
accordance with such Public Lender’s compliance procedures and applicable law, including United
States Federal and state securities laws, to make reference to Borrower Materials that are not made
available through the “Public Side Information” portion of the Platform and that may contain
material non-public information with respect to the Borrowers or their securities for purposes of
United States Federal or state securities laws.
(f) Reliance by Agent, Co-Collateral Agents, Issuing Banks and Lenders. The Agent,
the Co-Collateral Agents, the Issuing Banks and the Lenders shall be entitled to rely and act upon
any notices (including telephonic Notices of Borrowing) purportedly given by or on behalf of the
Borrowers even if (i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof. The Borrowers shall
indemnify the Agent, each Co-Collateral Agent, each Issuing Bank, each Lender and the Related
Parties of each of them from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the Borrowers. All
telephonic notices to and other telephonic communications with the Agent may be recorded by the
Agent, and each of the parties hereto hereby consents to such recording.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any Lender or the Agent
to exercise, and no delay in exercising, any right hereunder or under any Note shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
Notwithstanding anything to the contrary contained herein or in any other Loan Document, the
authority to enforce rights and remedies hereunder and under the other Loan Documents against the
Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law
in connection with such enforcement shall be instituted and maintained exclusively by, the Agent in
accordance with Section 6.01 for the benefit of all the Lenders and the Issuing Banks;
provided, however, that the foregoing shall not prohibit (a) the Agent from
exercising on its own behalf the rights and remedies that inure to its benefit (solely in its
capacity as Agent) hereunder and under the other Loan Documents, (b) each Issuing Bank from
exercising the rights and remedies that inure to its benefit (solely in its capacity as an Issuing
Bank, as the case may be) hereunder and under the other Loan Documents, (c) any Lender from
exercising setoff rights in accordance with Section 9.06 (subject to the terms of Section 2.15), or
(d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf
during the pendency of a proceeding relative to any Loan Party under any Bankruptcy Law; and
provided, further, that if at any time there is no Person acting as Agent hereunder
and under the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise
ascribed to the Agent pursuant to Article VI and (ii) in addition to the matters set forth in
clauses (b), (c) and (d) of the preceding proviso and subject to Section 2.15, any Lender may, with
the consent of the Required Lenders, enforce any rights and remedies available to it and as
authorized by the Required Lenders.
SECTION 9.04. Costs and Expenses. (a) The Company agrees to pay on demand all
reasonable costs and expenses of the Agent, each Co-Collateral Agent and each Issuing Bank in
connection with the preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other documents to be delivered hereunder, including, without
limitation, (A) all due diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal, consultant, and audit expenses, (B)
the reasonable fees and expenses of counsel for the Agent, each Co-Collateral Agent and each
Issuing Bank with respect thereto, (C) fees and expenses incurred in connection with the creation,
perfection or protection of the liens under the Loan Documents (including all reasonable search,
filing and recording fees) and (D) costs associated with insurance reviews, Collateral audits,
field exams, collateral valuations and collateral
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reviews to the extent provided herein, provided, however, the Company shall not be
required to pay fees or expenses of more than one counsel in any jurisdiction where the Collateral
is located, with respect to advising such Agent, each Co-Collateral Agent and each Issuing Bank as
to its rights and responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan Party or with other
creditors of any Loan Party or any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors’ rights generally and any proceeding ancillary thereto. The Company further agrees to
pay on demand all costs and expenses of the Agent, each Co-Collateral Agent, each Issuing Bank and
each Lender, if any (including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings or otherwise) of
the Loan Documents, whether in any action, suit or litigation, or any bankruptcy, insolvency or
other similar proceeding affecting creditors’ rights generally, including, without limitation,
reasonable fees and expenses of counsel for the Agent, each Co-Collateral Agent, each Issuing Bank
and each Lender in connection with the enforcement of rights under this Agreement and the other
Loan Documents.
(b) The Company agrees to indemnify and hold harmless the Agent, each Co-Collateral Agent,
each Issuing Bank and each Lender and each of their Related Parties (each, an “Indemnified
Party”) from and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel) incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) (i) the Notes, this Agreement, any
of the transactions contemplated herein or the actual or proposed use of the proceeds of the
Advances or Letters of Credit or (ii) the actual or alleged presence of Hazardous Materials on any
property of the Company or any of its Subsidiaries or any Environmental Action relating in any way
to the Company or any of its Subsidiaries, except to the extent such claim, damage, loss, liability
or expense resulted from such Indemnified Party’s gross negligence or willful misconduct as found
in a non-appealable judgment by a court of competent jurisdiction. In the case of an
investigation, litigation or other proceeding to which the indemnity in this Section 9.04(b)
applies, such indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, equityholders or creditors or an
Indemnified Party or any other Person, whether or not any Indemnified Party is otherwise a party
thereto and whether or not the transactions contemplated hereby are consummated. The Company and
each Indemnified Party agrees not to assert any claim for special, indirect, consequential or
punitive damages against the Company, the Agent, any Lender, any of their Affiliates, or any of
their respective directors, officers, employees, attorneys and agents, on any theory of liability,
arising out of or otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any Eurodollar Rate Advance is made by
any Borrower to or for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment or Conversion pursuant to Section 2.08(d) or (e), 2.10
or 2.12, acceleration of the maturity of the Notes pursuant to Section 6.01 or for any other
reason, or by an Eligible Assignee to a Lender other than on the last day of the Interest Period
for such Advance upon an assignment of rights and obligations under this Agreement pursuant to
Section 9.08 as a result of a demand by the Company pursuant to Section 9.08(a), the applicable
Borrower shall, upon demand by such Lender (with a copy of such demand to the Agent), pay to the
Agent for the account of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result of such payment or
Conversion, including, without limitation, any loss (excluding loss of anticipated profits), cost
or expense incurred by reason of the liquidation or reemployment of deposits or other funds
acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of any Loan Party hereunder or
under any other Loan Document, the agreements and obligations of the Borrowers contained in
Sections 2.11, 2.14 and 9.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under the Notes.
(e) No Indemnified Party referred to in subsection (b) above shall be liable for any damages
arising from the use by unintended recipients of any information or other materials distributed to
such unintended recipients by such Indemnified Party through telecommunications, electronic or
other information transmission
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systems in connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby other than for direct or actual damages resulting from the gross
negligence or willful misconduct of such Indemnified Party as determined by a final and
nonappealable judgment of a court of competent jurisdiction.
(f) All amounts due under this Section shall be payable not later than ten Business Days after
demand therefor.
(g) The agreements in this Section shall survive the resignation of the Agent, any
Co-Collateral Agent and any Issuing Bank, the replacement of any Lender, the termination of the
aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.
SECTION 9.05. Payments Set Aside. To the extent that any payment by or on behalf of any
Borrower is made to the Agent, any Co-Collateral Agent, any Issuing Bank or any Lender, or the
Agent, any Co-Collateral Agent, any Issuing Bank or any Lender exercises its right of setoff, and
such payment or the proceeds of such setoff or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Agent, such Co-Collateral Agent, such Issuing Bank or such Lender in
its discretion) to be repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Bankruptcy Law or otherwise, then (a) to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such setoff had not occurred, and (b)
each Lender and each Issuing Bank severally agrees to pay to the Agent upon demand its applicable
share (without duplication) of any amount so recovered from or repaid by the Agent, plus interest
thereon from the date of such demand to the date such payment is made at a rate per annum equal to
the Federal Funds Rate from time to time in effect. The obligations of the Lenders and the Issuing
Banks under clause (b) of the preceding sentence shall survive the payment in full of the
Obligations and the termination of this Agreement.
SECTION 9.06. Right of Set-off. Upon (i) the occurrence and during the continuance of
any Event of Default and (ii) the making of the request or the granting of the consent specified by
Section 6.01 to authorize the Agent to declare the Advances due and payable pursuant to the
provisions of Section 6.01, the Agent, each Issuing Bank, each Co-Collateral Agent and each Lender
and each of their respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at any time owing by
the Agent, such Issuing Bank, such Co-Collateral Agent or such Lender or such Affiliate to or for
the credit or the account of any Borrower against any and all of the obligations of such Borrower
now or hereafter existing under this Agreement and any Note held by the Agent, such Issuing Bank,
such Co-Collateral Agent or such Lender, whether or not such Lender shall have made any demand
under this Agreement or such Note and although such obligations may be unmatured, provided,
however, that no such right shall exist against any deposit designated as being for the
benefit of any governmental authority, provided, further, that in the event that
any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be
paid over immediately to the Agent for further application in accordance with the provisions of
Section 2.19 and, pending such payment, shall be segregated by such Defaulting Lender from its
other funds and deemed held in trust for the benefit of the Agent and the Lenders, and (y) the
Defaulting Lender shall provide promptly to the Agent a statement describing in reasonable detail
the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff.
Each Lender agrees promptly to notify the applicable Borrower after any such set-off and
application, provided that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender, the Agent, each Issuing Bank, each
Co-Collateral Agent and each such Affiliate under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) that the Agent, the Issuing
Banks, the Co-Collateral Agents, the Lenders or such Affiliates may have.
SECTION 9.07. Binding Effect. This Agreement shall become effective in accordance
with Section 3.01 and thereafter shall be binding upon and inure to the benefit of the Borrowers,
the Agent, each Co-Collateral Agent and each Lender and their respective successors and assigns,
except that no Borrower shall have the right to assign its rights hereunder or any interest herein
without the prior written consent of all of the Lenders.
SECTION 9.08. Assignments and Participations. (a) Each Lender may, with the consent
of the Agent (not to be unreasonably withheld or delayed) in the case of an assignment to a Person
who is not an Affiliate
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of such Lender and, if demanded by the Company so long as no Default shall have occurred and
be continuing and only with respect to any Affected Lender, upon at least five Business Days’
notice to such Lender and the Agent, shall, assign to one or more Eligible Assignees all or a
portion of its rights and obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it, its participations in Letters
of Credit, if any, and the Note or Notes held by it); provided, however, that (i)
each such assignment shall be of a constant, and not a varying, percentage of all rights and
obligations under this Agreement with respect to one or more Facilities, (ii) except in the case of
an assignment to a Lender, an Affiliate of a Lender or an Approved Fund with respect to a Lender,
or an assignment of all of a Lender’s rights and obligations under this Agreement, the amount of
(x) the Revolving Credit Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $5,000,000 or an integral multiple of $1,000,000 in
excess thereof and (y) the Unissued Letter of Credit Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than $1,000,000 or an
integral multiple of $1,000,000 in excess thereof, in each case, unless the Company and the Agent
otherwise agrees, (iii) each such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Company pursuant to this Section 9.08(a) shall be
arranged by the Company after consultation with the Agent and shall be either an assignment of all
of the rights and obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations of the assigning Lender under
this Agreement, (v) no Lender shall be obligated to make any such assignment as a result of a
demand by the Company pursuant to this Section 9.08(a) unless and until such Lender shall have
received one or more payments from either the Borrowers or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this Agreement, and (vi) the parties to
each such assignment shall execute and deliver to the Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance (and the assignee, if it is not a Lender, shall deliver
to the Agent an Administrative Questionnaire), together with any Note subject to such assignment
and a processing and recordation fee of $3,500 payable by the parties to each such assignment;
provided, however, that (x) only one such fee shall be payable in connection with
simultaneous assignments to or by two or more Approved Funds with respect to a Lender and (y) in
the case of each assignment made as a result of a demand by the Company, such recordation fee shall
be payable by the Company except that no such recordation fee shall be payable in the case of an
assignment made at the request of the Company to an Eligible Assignee that is an existing Lender.
Upon such execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall be a party hereto
and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder and (y) the Lender
assignor thereunder shall, to the extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights (other than its rights
under Sections 2.11, 2.14 and 9.04 to the extent any claim thereunder relates to an event arising
prior to such assignment) and be released from its obligations (other than its obligations under
Section 9.06 to the extent any claim thereunder relates to an event arising prior to such
assignment) under this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder
and the assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created under or in connection
with, this Agreement or any other instrument or document furnished pursuant hereto; (ii) such
assigning Lender makes no representation or warranty and assumes no responsibility with respect to
the financial condition of any Loan Party or the performance or observance by any Loan Party of any
of its obligations under any Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee confirms that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 5.01(h) and such other documents and
information as it has deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and without reliance upon
the
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Agent, such assigning Lender or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee confirms that it is an Eligible Assignee;
(vi) such assignee appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers and discretion as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt notice thereof to
the Company
(d) In connection with any assignment of rights and obligations of any Defaulting Lender
hereunder, no such assignment shall be effective unless and until, in addition to the other
conditions thereto set forth herein, the parties to the assignment shall make such additional
payments to the Agent in an aggregate amount sufficient, upon distribution thereof as appropriate
(which may be outright payment, purchases by the assignee of participations or subparticipations,
or other compensating actions, including funding, with the consent of the Borrowers and the Agent,
the applicable pro rata share of Advances previously requested but not funded by the Defaulting
Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x)
pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Agent or
any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its
full pro rata share of all Advances and participations in Letters of Credit in accordance with its
Ratable Share. Notwithstanding the foregoing, in the event that any assignment of rights and
obligations of any Defaulting Lender hereunder shall become effective under applicable Law without
compliance with the provisions of this paragraph, then the assignee of such interest shall be
deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.
(e) The Agent shall maintain at its address referred to in Section 9.02 a copy of each
Assumption Agreement and each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the “Register”).
The entries in the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrowers, the Agent and the Lenders may treat each Person whose name is recorded in
the Register as a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by any Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(f) Each Lender may sell participations to one or more banks or other entities (other than the
Company or any of its Affiliates) in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Commitment, the Advances
owing to it and any Note or Notes held by it); provided, however, that (i) such
Lender’s obligations under this Agreement (including, without limitation, its Commitment to the
Borrowers hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations, (iii) such Lender shall remain
the holder of any such Note for all purposes of this Agreement, (iv) the Borrowers, the Agent and
the other Lenders shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, provided,
however, that any agreement between a Lender and such participant may provide that the
Lender will not, without the consent of participant, agree to any such amendment, waiver or consent
which would reduce the principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation, or postpone any date
fixed for any payment of principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, in each case to the extent subject to such participation.
(g) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 9.08, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrowers furnished to such Lender by or
on behalf of the Borrowers; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree
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to preserve the confidentiality of any Borrower Information relating to the Borrowers received
by it from such Lender.
(h) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or substitute any such
pledge or assignee for such Lender as a party hereto.
SECTION 9.09. Confidentiality. Neither the Agent nor any Lender may disclose to any
Person any confidential, proprietary or non-public information of any Loan Party furnished to the
Agent or the Lenders by any Loan Party, including, without limitation (1) earnings and other
financial information and forecasts, budgets, projections, plans, (including, without limitation,
any confirmations of publicly disclosed advice regarding any material matter); (2) mergers,
acquisitions, tender offers, joint ventures or changes in assets; (3) new products or discoveries
or developments regarding the Company’s customers or suppliers; (4) changes in control or in
management; (5) changes in auditors or auditor notifications to the Company; (6) securities
redemptions, splits, repurchase plans, changes in dividends, changes in rights of holders or sales
of additional securities; and (7) negative news relating to such matters as physical damage to
properties from significant events, loss of significant contractual relationship, material
litigation, defaults under contracts or securities, bankruptcy or receivership (such information
being referred to collectively herein as the “Borrower Information”), except that each of
the Agent, each Co-Collateral Agent and each of the Lenders may disclose Borrower Information (i)
to its Affiliates and to its and its Affiliates’ managers, administrators, partners, employees,
trustees, officers, directors, agents, advisors and other representatives solely for purposes of
this Agreement, any Notes and the transactions contemplated hereby (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential nature of such
Borrower Information and instructed to keep such Borrower Information confidential on terms
substantially no less restrictive than those provided herein), (ii) to the extent requested by any
regulatory authority purporting to have jurisdiction over it (including any self-regulating
authority, such as the National Association of Insurance Commissioners), provided, to the
extent permitted by law and practicable under the circumstances, the Agent or such Lender shall
provide the Company with prompt notice of such requested disclosure so that the Company may seek a
protective order prior to the time when the Agent or such Lender is required to make such
disclosure, (iii) to the extent required by applicable laws or regulations or by any subpoena or
similar legal process, provided, to the extent permitted by law and practicable under the
circumstances, the Agent or such Lender shall provide the Company with prompt notice of such
requested disclosure so that the Company may seek a protective order prior to the time when the
Agent or such Lender is required to make such disclosure, (iv) subject to this Section 9.09, to any
other Lender to this Agreement which has requested such information, (v) in connection with the
exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or
the enforcement of rights hereunder, (vi) subject to an agreement containing provisions no less
restrictive than those of this Section 9.09, to any assignee or participant or prospective assignee
or participant or any pledge referred to in Section 9.08(g), (vii) to the extent such Borrower
Information (A) is or becomes generally available to the public on a non-confidential basis other
than as a result of a breach of this Section 9.09 by the Agent or such Lender, or (B) is or becomes
legally available to the Agent or such Lender on a nonconfidential basis from a source other than a
Loan Party, provided that the source of such information was not known by the Agent or such
Lender to be bound by a confidentiality agreement with or
other contractual, legal or fiduciary
obligations of confidentiality to a Loan Party or any other party with respect to such information,
(viii) with the consent of the Company, (ix) to any party hereto and (x) subject to the Agent’s or
the applicable Lender’s receipt of an agreement containing provisions no less restrictive than
those of this Section, to any actual or prospective party (or its managers, administrators,
trustees, partners, directors, officers, employees, agents, advisors and other representatives) to
any swap, derivative or other transaction under which payments are to be made by reference to the
Company and its Obligations, this Agreement or payments hereunder. Any Person required to maintain
the confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential information
SECTION 9.10. Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement. Delivery of
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an executed counterpart of a signature page to this Agreement by telecopier or in .pdf (or
similar electronic format) shall be effective as delivery of a manually executed counterpart of
this Agreement.
SECTION 9.11. Survival of Representations and Warranties. All representations and
warranties made hereunder and in any other Loan Document or other document delivered pursuant
hereto or thereto shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the Agent, each Co-Collateral
Agent and each Lender, regardless of any investigation made by the Agent, any Co-Collateral Agent
or any Lender or on their behalf and notwithstanding that the Agent, any Co-Collateral Agent or any
Lender may have had notice or knowledge of any Default at the time of any Advance, and shall
continue in full force and effect as long as any Advance or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
SECTION 9.12. Severability. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not
be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to
replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.
The invalidity of a provision in a particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions
of this Section 9.12, if and to the extent that the enforceability of any provisions in this
Agreement relating to Defaulting Lenders shall be limited by Bankruptcy Laws, as determined in good
faith by the Agent or the Issuing Banks, as applicable, then such provisions shall be deemed to be
in effect only to the extent not so limited
SECTION 9.13. Jurisdiction. (a) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY
AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT
OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND
DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN
SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT
OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT
SHALL AFFECT ANY RIGHT THAT THE AGENT, ANY LENDER OR ANY ISSUING BANK MAY OTHERWISE HAVE TO BRING
ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE
BORROWERS OR ANY OTHER LOAN PARTIES OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF
THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING IN ANY SUCH COURT.
98
(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(e) EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.14. No Liability of the Issuing Banks. Each Lender and each Borrower agree
that, in paying any drawing under a Letter of Credit, no Issuing Bank shall have any responsibility
to obtain any document, other than any sight draft, certificates and documents expressly required
by the Letter of Credit, or to ascertain or inquire as to the validity or accuracy of any such
document or the authority of the Person executing or delivering any such document. Each Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of any Letter of Credit
with respect to its use of such Letter of Credit. Neither an Issuing Bank nor any of its officers
or directors shall be liable or responsible for: (a) the use that may be made of any Letter of
Credit or any acts or omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid, insufficient, fraudulent or forged;
(c) payment by such Issuing Bank against presentation of documents that do not comply with the
terms of a Letter of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrowers shall have a claim against
such Issuing Bank, and such Issuing Bank shall be liable to the Borrowers, to the extent of any
direct, but not consequential, damages suffered by the Company that the Company proves were caused
by such Issuing Bank’s willful misconduct or gross negligence as found in a final non-appealable
judgment by a court of competent jurisdiction. In furtherance and not in limitation of the
foregoing, each Issuing Bank may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or information to the contrary
and no Issuing Bank shall be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or
ineffective for any reason; provided that nothing herein shall be deemed to excuse such
Issuing Bank if it acts with gross negligence or willful misconduct in accepting such documents as
found in a final non-appealable judgment by a court of competent jurisdiction.
SECTION 9.15. PATRIOT Act Notice. Each Lender, each Co-Collateral Agent and the Agent
(for itself and not on behalf of any Lender) hereby notifies each Borrower that pursuant to the
requirements of the PATRIOT Act, it is required to obtain, verify and record information that
identifies such Borrower, which information includes the name and address of such Borrower and
other information that will allow such Lender, each Co-Collateral Agent or the Agent, as
applicable, to identify such Borrower in accordance with the PATRIOT Act. Each Borrower shall
provide such information and take such actions as are reasonably requested by the Agent or any
Lenders in order to assist the Agent and the Lenders in maintaining compliance with its ongoing
obligations under applicable “know your customer” and anti-money laundering rules and regulations,
including the PATRIOT Act.
SECTION 9.16. Release of Collateral; Termination of Loan Documents. (a) (i) Upon the
sale, lease, transfer or other disposition of any item of Collateral of any Loan Party in
accordance with the terms of the Loan Documents, including, without limitation, as a result of the
sale, in accordance with the terms of the Loan Documents, of the Loan Party that owns such
Collateral, (ii) upon a Subsidiary ceasing to be a Material Subsidiary, and (iii) at any time a
Loan Party’s guarantee of the obligations under the Loan Documents ceases as provided in
99
Section 7.07, the security interests granted by the Loan Documents with respect to such items
of Collateral and/or Loan Party shall immediately terminate and automatically be released, and the
Agent and/or the Co-Collateral Agents will, at the Company’s expense, execute and deliver to such
Loan Party such documents as such Loan Party may reasonably request to evidence the release of such
item of Collateral from the assignment and security interest granted under the Collateral
Documents.
(b) Upon the latest of (i) the payment in full in cash of all Obligations under the Loan
Documents, (ii) the termination in full of the Commitments and (iii) the latest date of expiration
or termination of all Letters of Credit (or receipt by the Agent of an irrevocable notice from each
Issuing Bank with a Letter of Credit outstanding that it will not seek to enforce any rights that
it has or may have in accordance with Section 2.03 against the Agent or the Lenders), (x) except as
otherwise specifically stated in this Agreement or the other Loan Documents, this Agreement and the
other Loan Documents shall terminate and be of no further force or effect, (y) the Agent shall
release or cause the release of all Collateral from the Liens of the Loan Documents and the
Guarantors of all Obligations under each Guaranty, and will, at the Company’s expense, execute and
deliver such documents as the Company may reasonably request to evidence the release of Collateral
from the assignment and security interest granted under the Collateral Documents and the
obligations of the Guarantors and (z) each Lender that has requested and received a Note shall
return such Note to the Company marked “cancelled” or “paid in full”; provided,
however, that the Lenders’ obligations under Section 9.09 shall continue until the earlier
of (x) the date that is three years after the termination of this Agreement and (y) the date that
is three months after the latest date that is the subject of the Projections delivered in
accordance with Section 5.01(h)(viii), and the Lender’s obligations under this Section 9.16 shall
survive until satisfied. Upon the termination in full of the Canadian Revolving Credit Commitments
and the payment in full in cash of all Canadian Obligations (other than (x) contingent
indemnification obligations for which no claim has been asserted and (y) obligations under Canadian
Secured Agreements as to which arrangements satisfactory to the applicable Canadian Secured Party
have been made): (A) except as otherwise specifically stated in this Agreement or the other Loan
Documents, the Canadian Borrower shall cease to be a Borrower under this Agreement and the other
Loan Documents and its Subsidiaries, if any, shall cease to be Canadian Subsidiary Guarantors, and
the obligations of the Canadian Borrower and any Canadian Subsidiary Guarantors hereunder and
thereunder shall terminate and be of no further force or effect, (B) the Agent shall release or
cause the release of all Canadian Collateral from the Liens of the Loan Documents and any Canadian
Subsidiary Guarantors of all Obligations under each Guaranty, and will, at the Company’s expense,
execute and deliver such documents as the Company may reasonably request to evidence the release of
Canadian Collateral from the assignment and security interest granted under the Collateral
Documents and the obligations of the Guarantors, (C) any representation or warranty or covenant
with respect to the Canadian Borrower and any Canadian Subsidiary Guarantor as a Borrower or other
Loan Party set forth in this Agreement shall terminate and be of no further force or effect, (D)
any reference to any Canadian Pension Plan or Termination Event shall be deemed deleted, and (E)
each Lender that has requested and received a Note from the Canadian Borrower shall return such
Note to the Company marked “cancelled” or “paid in full”.
SECTION 9.17. Judgment Currency. (a) If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder in Dollars into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent could purchase
Dollars with such other currency at the Exchange Rate on the Business Day preceding that on which
final judgment is given.
(b) The obligation of each Borrower in respect of any sum due from it in any currency (the
“Primary Currency”) to any Lender or the Agent hereunder shall, notwithstanding any
judgment in any other currency, be discharged only to the extent that on the Business Day following
receipt by such Lender or the Agent (as the case may be), of any sum adjudged to be so due in such
other currency, such Lender or the Agent (as the case may be) may in accordance with normal banking
procedures purchase the applicable Primary Currency with such other currency; if the amount of the
applicable Primary Currency so purchased is less than such sum due to such Lender or the Agent (as
the case may be) in the applicable Primary Currency, each Borrower agrees, as a separate obligation
and notwithstanding any such judgment, to indemnify such Lender or the Agent (as the case may be)
against such loss, and if the amount of the applicable Primary Currency so purchased exceeds such
sum due to any Lender or the Agent (as the case may be) in the applicable Primary Currency, such
Lender or the Agent (as the case may be) agrees to remit to such Borrower such excess.
100
SECTION 9.18. No Fiduciary Duty. In connection with all aspects of each transaction
contemplated hereby (including in connection with any amendment, waiver or other modification
hereof or of any other Loan Document), each Borrower and each other Loan Party acknowledges and
agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other
services regarding this Agreement provided by the Agent, the Co-Collateral Agents, the Arrangers
and the Lenders are arm’s-length commercial transactions between the Loan Parties and their
respective Affiliates, on the one hand, and the Agent, the Co-Collateral Agents, the Arrangers and
the Lenders, on the other hand, (B) each of the Loan Parties has consulted its own legal,
accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Loan
Parties are capable of evaluating, and understand and accept, the terms, risks and conditions of
the transactions contemplated hereby and by the other Loan Documents; (ii) (A) the Agent, the
Co-Collateral Agents, the Arrangers and the Lender each are and has been acting solely as a
principal and, except as expressly agreed in writing by the relevant parties, have not been, are
not, and will not be acting as an advisor, agent or fiduciary for the Loan Parties or any of their
respective Affiliates, or any other Person and (B) neither the Agent, the Co-Collateral Agents, the
Arrangers nor the Lenders have any obligation to the Loan Parties or any of their respective
Affiliates with respect to the transactions contemplated hereby except those obligations expressly
set forth herein and in the other Loan Documents; and (iii) the Agent, the Co-Collateral Agents,
the Arrangers and the Lenders and their respective Affiliates may be engaged in a broad range of
transactions that involve interests that differ from those of the Loan Parties and their respective
Affiliates, and neither the Agent, the Co-Collateral Agents, the Arrangers nor the Lenders have any
obligation to disclose any of such interests to the Loan Parties or their respective Affiliates.
To the fullest extent permitted by law, each Borrower and each of the other Loan Parties hereby
waives and releases any claims that it may have against the Agent, the Co-Collateral Agents, the
Arrangers and the Lenders with respect to any breach or alleged breach of agency or fiduciary duty
in connection with any aspect of any transaction contemplated hereby.
SECTION 9.19. Electronic Execution of Assignments and Certain Other Documents. The words
“execution,” “signed,” “signature,” and words of like import in any Assumption Agreement or in any
amendment or other modification hereof (including waivers and consents) shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act or similar foreign laws.
[The remainder of this page intentionally left blank]
101
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|
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|
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|
XXXXXXX KODAK COMPANY
|
|
|
By |
/s/ Xxxxxxx X. Love
|
|
|
|
Name: |
Xxxxxxx X. Love |
|
|
|
Title: |
Treasurer |
|
|
|
KODAK CANADA INC.
|
|
|
By |
/s/ Xxxxxxx X. Love
|
|
|
|
Name: |
Xxxxxxx X. Love |
|
|
|
Title: |
Treasurer |
|
|
The undersigned US Subsidiary Guarantors and Canadian Subsidiary Guarantors, if any, have
caused this Agreement to be executed by their respective officers thereunto duly authorized, to
evidence their agreement to their obligations hereunder, as of the date first above written.
|
|
|
|
|
|
CREO MANUFACTURING AMERICA LLC
KODAK AVIATION LEASING LLC
|
|
|
By |
/s/ Xxxxxxx X. Love
|
|
|
|
Name: |
Xxxxxxx X. Love |
|
|
|
Title: |
Manager |
|
|
|
XXXXXXX GELATINE CORPORATION
XXXXXXX KODAK INTERNATIONAL CAPITAL COMPANY, INC.
FAR EAST DEVELOPMENT LTD.
FPC INC.
KODAK (NEAR EAST), INC.
KODAK AMERICAS, LTD.
KODAK IMAGING NETWORK, INC.
KODAK PORTUGUESA LIMITED
KODAK REALTY, INC.
LASER-PACIFIC MEDIA CORPORATION
PAKON, INC.
QUALEX, INC.
|
|
|
By |
/s/ Xxxxxxx X. Love
|
|
|
|
Name: |
Xxxxxxx X. Love |
|
|
|
Title: |
Treasurer |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
KODAK PHILIPPINES, LTD.
NPEC INC.
|
|
|
By |
/s/ Xxxxxxx X. Love
|
|
|
|
Name: |
Xxxxxxx X. Love |
|
|
|
Title: |
Assistant Treasurer |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
BANK OF AMERICA, N.A.
as Agent and Co-Collateral Agent
|
|
|
By |
/s/ Xxxxxxx X. X’Xxxxx
|
|
|
|
Name: |
Xxxxxxx X. X’Xxxxx |
|
|
|
Title: |
Senior Vice President |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
XXXXX FARGO CAPITAL FINANCE, LLC
as Co-Syndication Agent
|
|
|
By |
/s/ Xxxxx Xxxx
|
|
|
|
Name: |
Xxxxx Xxxx |
|
|
|
Title: |
Vice President |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
XXXXX FARGO CAPITAL FINANCE CORPORATION
CANADA
as Co-Syndication Agent and a Lender
|
|
|
By |
/s/ Xxxxxxx Xxxxxxx
|
|
|
|
Name: |
Xxxxxxx Xxxxxxx |
|
|
|
Title: |
Vice President
Xxxxx Fargo Capital Finance
Corporation Canada |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
CITICORP USA, INC
as Co-Collateral Agent
|
|
|
By |
/s/ Xxxxx X. Xxxxxx
|
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|
|
|
Title: |
Director |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
BANK OF AMERICA, N.A.
as US Lender
|
|
|
By |
/s/ Xxxxxxx X. X’Xxxxx
|
|
|
|
Name: |
Xxxxxxx X. X’Xxxxx |
|
|
|
Title: |
Senior Vice President |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
BANK OF AMERICA, N.A. (ACTING THROUGH ITS
CANADA BRANCH)
as Canadian Lender
|
|
|
By |
/s/ Xxxxxx Sales xx Xxxxxxx
|
|
|
|
Name: |
Xxxxxx Sales xx Xxxxxxx |
|
|
|
Title: |
Vice President |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
BANK OF AMERICA, N.A.
as an Issuing Bank
|
|
|
By |
/s/ Xxxxxxx X. X’Xxxxx
|
|
|
|
Name: |
Xxxxxxx X. X’Xxxxx |
|
|
|
Title: |
Senior Vice President |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
CITIBANK, N.A.,
as a Lender
|
|
|
By |
/s/ Xxxxx X. Xxxxxx
|
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|
|
|
Title: |
Director |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
CITIBANK, N.A.,
as an Issuing Bank
|
|
|
By |
/s/ Xxxxx X. Xxxxxx
|
|
|
|
Name: |
Xxxxx X. Xxxxxx |
|
|
|
Title: |
Director |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
The Bank of New York Mellon
as a Lender
|
|
|
By |
/s/ Xxxxxx Xxxxxxxxx
|
|
|
|
Name: |
Xxxxxx Xxxxxxxxx |
|
|
|
Title: |
Vice President |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
Xxxxxx Xxxxxxx Senior Funding, Inc.,
as a Lender
|
|
|
By |
/s/ Xxxxxxxx Xxxxxx
|
|
|
|
Name: |
Xxxxxxxx Xxxxxx |
|
|
|
Title: |
Vice President |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
PNC Bank, N.A.,
as a Lender
|
|
|
By |
/s/ Xxxx X. Xxxxx
|
|
|
|
Name: |
Xxxx X. Xxxxx |
|
|
|
Title: |
Vice President |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
PNC Bank, N.A.,
as an Issuing Bank
|
|
|
By |
/s/ Xxxx X. Xxxxx
|
|
|
|
Name: |
Xxxx X. Xxxxx |
|
|
|
Title: |
Vice President |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
Sumitomo Mitsui Banking Corporation,
as a Lender
|
|
|
By |
/s/ Xxxxx X. Xxxx
|
|
|
|
Name: |
Xxxxx X. Xxxx |
|
|
|
Title: |
Deputy General Manager |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
Industrial and Commercial Bank of China,
Shanghai Branch,
as a Lender
|
|
|
By |
/s/ Xx Xx
|
|
|
|
Name: |
Xx Xx |
|
|
|
Title: |
Vice-president of Industrial and
Commercial Bank of China,
Shanghai Branch |
|
|
Signature Page to
Credit Agreement
|
|
|
|
|
|
Industrial and Commercial Bank of China,
Shanghai Branch,
as an Issuing Bank
|
|
|
By |
/s/ Xx Xx
|
|
|
|
Name: |
Xx Xx |
|
|
|
Title: |
Vice-president of Industrial and
Commercial Bank of China,
Shanghai Branch |
|
|
Signature Page to
Credit Agreement
SCHEDULE I
COMMITMENTS
COMMITMENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US |
|
|
|
US Revolving Credit |
|
|
Canadian Revolving |
|
|
Letter of Credit |
|
Lender |
|
Commitment |
|
|
Credit Commitment |
|
|
Commitment |
|
Bank of America, N.A. |
|
$ |
88,125,000 |
|
|
|
— |
|
|
$ |
70,000,000 |
|
Bank of America, N.A. (acting
through its Canada branch) |
|
|
— |
|
|
$ |
10,875,000 |
|
|
|
— |
|
Citigroup USA, Inc. |
|
$ |
73,250,000 |
|
|
$ |
6,000,000 |
|
|
$ |
50,000,000 |
|
Xxxxx Fargo Bank, N.A. |
|
$ |
73,250,000 |
|
|
$ |
6,000,000 |
|
|
$ |
70,000,000 |
|
Xxxxxx Xxxxxxx |
|
$ |
46,250,000 |
|
|
$ |
3,750,000 |
|
|
|
|
|
PNC Bank, National Association |
|
$ |
35,000,000 |
|
|
|
— |
|
|
$ |
35,000,000 |
|
Bank of New York Mellon |
|
$ |
23,125,000 |
|
|
$ |
1,875,000 |
|
|
|
— |
|
Industrial and Commercial
Bank of China |
|
$ |
18,500,000 |
|
|
$ |
1,500,000 |
|
|
|
— |
|
Sumitomo Mitsui |
|
$ |
12,500,000 |
|
|
|
— |
|
|
|
— |
|
|
Total: |
|
$ |
370,000,000 |
|
|
$ |
30,000,000 |
|
|
$ |
225,000,000 |
|
Schedule II
Subsidiary Guarantors and Material Subsidiaries
PART A
US Subsidiary Guarantors
PART B
Canadian Subsidiary Guarantors
PART C
Material Subsidiaries of each Borrower
Part A of Schedule II to Credit Agreement
US Subsidiary Guarantors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Organizational |
Grantor |
|
Chief Executive Office |
|
Type of Organization |
|
Organization |
|
ID number |
Xxxxxxx Kodak Company
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
|
|
Corporation
|
|
New Jersey
|
|
|
3590801000 |
|
|
|
|
|
|
|
|
|
|
|
|
Creo Manufacturing America LLC
|
|
0000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
|
|
LLC
|
|
Wyoming
|
|
|
200400460497 |
|
|
|
|
|
|
|
|
|
|
|
|
Xxxxxxx Gelatine Corporation
|
|
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
|
|
Corporation
|
|
Massachusetts
|
|
|
041272190 |
|
|
|
|
|
|
|
|
|
|
|
|
Xxxxxxx Kodak International
Capital Company, Inc.
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
|
|
Corporation
|
|
Delaware
|
|
|
0675517 |
|
|
|
|
|
|
|
|
|
|
|
|
Far East Development Ltd.
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
|
|
Corporation
|
|
Delaware
|
|
|
0899514 |
|
|
|
|
|
|
|
|
|
|
|
|
FPC Inc.
|
|
0000 Xxxxx Xxxxxx Xxxx.
Xxxxxxxxx, XX 00000
|
|
Corporation
|
|
California
|
|
|
C0957735 |
|
|
|
|
|
|
|
|
|
|
|
|
Kodak (Near East), Inc.
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
|
|
Corporation
|
|
New York
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
Kodak Americas, Ltd.
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
|
|
Corporation
|
|
New York
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
Kodak Aviation Leasing LLC
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
|
|
LLC
|
|
Delaware
|
|
|
3241322 |
|
|
|
|
|
|
|
|
|
|
|
|
Kodak Imaging Network, Inc.
|
|
0000 00xx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
|
|
Corporation
|
|
Delaware
|
|
|
3059736 |
|
|
|
|
|
|
|
|
|
|
|
|
Kodak Philippines, Ltd.
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
|
|
Corporation
|
|
New York
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
Kodak Portuguesa Limited
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
|
|
Corporation
|
|
New York
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
Kodak Realty, Inc.
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
|
|
Corporation
|
|
New York
|
|
|
N/A |
|
|
|
|
|
|
|
|
|
|
|
|
Laser-Pacific Media Corporation
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
|
|
Corporation
|
|
Delaware
|
|
|
2236415 |
|
|
|
|
|
|
|
|
|
|
|
|
NPEC Inc.
|
|
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
|
|
Corporation
|
|
California
|
|
|
C1513754 |
|
|
|
|
|
|
|
|
|
|
|
|
Pakon, Inc.
|
|
000 X. Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxxxx, XX 00000
|
|
Corporation
|
|
Indiana
|
|
|
198507-375 |
|
|
|
|
|
|
|
|
|
|
|
|
Qualex Inc.
|
|
0000 Xxxxxxx Xxxxx
Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000
|
|
Corporation
|
|
Delaware
|
|
|
2133251 |
|
Part B of Schedule II to Credit Agreement
Canadian Subsidiary Guarantors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jurisdiction of |
|
Organizational |
Grantor |
|
Chief Executive Office |
|
Type of Organization |
|
Organization |
|
ID number |
|
|
None |
|
|
|
|
|
|
Part C of Schedule II to Credit Agreement
Material Subsidiaries of Xxxxxxx Kodak Company
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
Percentage of |
|
|
Issuer of |
|
Class of |
|
|
|
|
|
Number of |
|
Number of |
|
Outstanding |
|
|
Pledged |
|
Equity |
|
|
|
Certificate |
|
Shares |
|
Shares |
|
Shares |
Grantor |
|
Equity |
|
Interest |
|
Par Value |
|
No(s) |
|
Outstanding |
|
Pledged |
|
Pledged |
Xxxxxxx
Kodak Company |
|
Xxxxxxx Kodak
Holdings B.V. |
|
Common shares |
|
Nominal value of 1,000
Dutch Guilder or €453,78 as per article 2:178c BW |
|
Not applicable |
|
20,401 |
|
13,260 |
|
65% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Xxxxxxx
Kodak Company |
|
Kodak Limited |
|
Ordinary shares |
|
UK£1.0 |
|
89 |
|
100,000,000 Ordinary |
|
65,000,000 Ordinary |
|
65% |
|
|
|
|
|
|
|
|
|
shares |
|
shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
93 |
|
30,000,000 Ordinary |
|
19,500,000 Ordinary |
|
65% |
|
|
|
|
|
|
|
|
|
|
shares |
|
shares |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Xxxxxxx
Kodak Company |
|
Kodak Holding GmbH |
|
Shares in a limited |
|
€2,557,800 |
|
Not applicable |
|
20 |
|
13 |
|
65% |
|
|
|
liability company |
|
|
|
|
|
|
|
|
|
|
Part C of Schedule II to Credit Agreement
Material Subsidiaries of Kodak Canada Inc
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
Percentage of |
|
|
Issuer of |
|
Class of |
|
|
|
|
|
Number of |
|
Number of |
|
Outstanding |
|
|
Pledged |
|
Equity |
|
|
|
Certificate |
|
Shares |
|
Shares |
|
Shares |
Grantor |
|
Equity |
|
Interest |
|
Par Value |
|
No(s) |
|
Outstanding |
|
Pledged |
|
Pledged |
|
|
|
|
|
|
|
|
None |
Schedule III to Credit Agreement
PLEDGED
DEPOSIT ACCOUNTS
EKC ACCOUNTS
|
|
|
|
|
|
|
Grantor |
|
Name and Address of Bank |
|
Account Number |
|
Contact Name |
Xxxxxxx Gelatine Corp.
|
|
Bank of New York
Mellon, 000 Xxxx
Xxxxxx, Xxxxx
000-0000,
Xxxxxxxxxx, XX
00000-0000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Bank of America,
000 Xxxxxxxxx Xx.
XX 00xx
Xxxxx, Xxxxxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Bank of America,
000 Xxxxxxxxx Xx.
XX 00xx
Xxxxx, Xxxxxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Bank of America,
000 Xxxxxxxxx Xx.
XX 00xx
Xxxxx, Xxxxxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Bank of
Colorado-Front
Range, 000 Xxxx
Xxxxxx, XX Xxx 000,
XX 00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Bank of New York
Mellon, 000 Xxxx
Xxxxxx, Xxxxx
000-0000,
Xxxxxxxxxx, XX
00000-0000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Bank of New York
Mellon, 000 Xxxx
Xxxxxx, Xxxxx
000-0000,
Xxxxxxxxxx, XX
00000-0000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Bank of the West,
000 X. Xxxxx Xxxxx
Xxxxx 000, Xxxxxx
Xxxxx, XX 00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citibank, N.A., 000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx, Xxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citibank, N.A., 000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx, Xxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citibank, N.A., 000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx, Xxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citibank, N.A., 000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx, Xxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citibank, N.A., 000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx, Xxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
|
|
|
|
|
|
|
Grantor |
|
Name and Address of Bank |
|
Account
Number |
|
Contact
Name |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Citizens Alliance
Bank, 00 Xxxxx
Xxxxxx Xxxxxxxxx,
Xxxxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
ESL Federal Credit
Union, 000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx,
XX 00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
XX Xxxxxx Chase,
000 Xxxx Xxxxxx,
Xxx Xxxx XX 00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
XX Xxxxxx Chase,
000 Xxxx Xxxxxx,
Xxx Xxxx XX 00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
XX Xxxxxx Chase,
000 Xxxx Xxxxxx,
Xxx Xxxx XX 00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Keybank, 000
Xxxxxxxx,
00xx
Xxxxx XX-00-00-0000
Xxxxxxxxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
Keybank, 000
Xxxxxxxx,
00xx
Xxxxx XX-00-00-0000
Xxxxxxxxxx, XX
00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
PNC Bank, Xxx Xxxxx
Xxxxxx
00xx
Xxxxx, X.
Xxxxxxxxx, XX 00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
PNC Bank, Xxx Xxxxx
Xxxxxx
00xx
Xxxxx, X.
Xxxxxxxxx, XX 00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
PNC Bank, Xxx Xxxxx
Xxxxxx
00xx
Xxxxx, X.
Xxxxxxxxx, XX 00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak Company
|
|
PNC Bank, Xxx Xxxxx
Xxxxxx
00xx
Xxxxx, X.
Xxxxxxxxx, XX 00000
|
|
[*]
|
|
[*] |
Xxxxxxx Kodak
International Capital
|
|
Citibank, N.A, 000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx, Xxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
Far East Development Ltd.
|
|
Citibank, N.A, 000
Xxxxxxxxx Xxxxxx
00xx
Xxxxx, Xxx Xxxx, XX
00000
|
|
[*]
|
|
[*] |
FPC Inc.
|
|
Bank of New York
Mellon, 000 Xxxx
Xxxxxx, Xxxxx
000-0000,
Xxxxxxxxxx, XX
00000-0000
|
|
[*]
|
|
[*] |
|
|
|
|
|
|
|
|
|
Name and Address |
|
|
|
|
Grantor |
|
of Bank |
|
Account
Number |
|
Contact
Name |
FPC Inc.
|
|
Bank of America,
000 Xxxxxxxxx
Xxxxxx XX
00xx
Xxxxx, Xxxxxxx, XX
00000
|
|
[*]
|
|
[*] |
Kodak Imaging Network
|
|
Bank of New York
Mellon, 000 Xxxx
Xxxxxx, Xxxxx
000-0000,
Xxxxxxxxxx, XX
00000-0000
|
|
[*]
|
|
[*] |
KPG Barbados Ltd.
|
|
PNC Bank, Xxx Xxxxx
Xxxxxx
00xx
Xxxxx, X.
Xxxxxxxxx, XX 00000
|
|
[*]
|
|
[*] |
Laser Edit, Inc.
|
|
Bank of America,
000 Xxxxxxxxx
Xxxxxx XX
00xx
Xxxxx, Xxxxxxx, XX
00000
|
|
[*]
|
|
[*] |
Laser Pacific Media
|
|
Bank of America,
000 Xxxxxxxxx
Xxxxxx XX
00xx
Xxxxx, Xxxxxxx, XX
00000
|
|
[*]
|
|
[*] |
NPEC Inc.
|
|
Bank of New York
Mellon, 000 Xxxx
Xxxxxx, Xxxxx
000-0000,
Xxxxxxxxxx, XX
00000-0000
|
|
[*]
|
|
[*] |
Pacific Video Inc.
|
|
Bank of New York
Mellon, 000 Xxxx
Xxxxxx, Xxxxx
000-0000,
Xxxxxxxxxx, XX
00000-0000
|
|
[*]
|
|
[*] |
Qualex, Inc.
|
|
Bank of America,
000 Xxxxxxxxx Xx XX
00xx Xxxxx,
Xxxxxxx, XX 00000
|
|
[*]
|
|
[*] |
Qualex, Inc.
|
|
Bank of New York
Mellon, 000 Xxxx
Xxxxxx, Xxxxx
000-0000,
Xxxxxxxxxx, XX
00000-0000
|
|
[*]
|
|
[*] |
Qualex, Inc.
|
|
Citibank, N.A., 000
Xxxxxxxxx Xxxxxx
00xx Xxxxx, Xxx
Xxxx, XX 00000
|
|
[*]
|
|
[*] |
Qualex, Inc.
|
|
Citibank, N.A., 000
Xxxxxxxxx Xxxxxx
00xx Xxxxx, Xxx
Xxxx, XX 00000
|
|
[*]
|
|
[*] |
Qualex, Inc.
|
|
PNC Bank, Xxx Xxxxx
Xxxxxx
00xx
Xxxxx, X.
Xxxxxxxxx, XX
00000
|
|
[*]
|
|
[*] |
|
|
|
[*] |
|
Certain confidential information contained in this document has been omitted from public
filing pursuant to a request for confidential treatment submitted to the U.S. Securities and
Exchange Commission. The omitted information, which has been identified with the symbol “[*],” has
been filed separately with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 of
the Securities Exchange Act of 1934, as amended. |
PLEDGED DEPOSIT ACCOUNTS
KCI CAD ACCOUNTS
|
|
|
|
|
|
|
Grantor |
|
Name and Address of Bank |
|
Account Number |
|
Contact Name |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Caisse Populaire
Xxxxxxxxxx, 00 Xxxxx xx
Xxxxxxxx Xxxxxx 000,
Xxxxxx, Xxxxxx Xxxxxx
X0X 0X0
|
|
[*]
|
|
[*] |
KCI USD ACCOUNTS
|
|
|
|
|
|
|
Grantor |
|
Name and Address of Bank |
|
Account Number |
|
Contact Name |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
Kodak Canada Inc
|
|
Scotiabank, 00 Xxxx
Xxxxxx Xxxx Xxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
|
|
[*]
|
|
[*] |
|
|
|
[*] |
|
Certain confidential information contained in this document has been omitted from public
filing pursuant to a request for confidential treatment submitted to the U.S. Securities and
Exchange Commission. The omitted information, which has been identified with the symbol “[*],” has
been filed separately with the U.S. Securities and Exchange Commission pursuant to Rule 24b-2 of
the Securities Exchange Act of 1934, as amended. |
Schedule 2.01(b) Existing Letters of Credit
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Entity |
|
Bank |
|
|
LOC # |
|
|
Beneficiary |
|
|
Amount |
|
EKC |
|
BOA |
|
|
00000003081120 |
|
|
New York State Dept of Environmental Conservation |
|
$ |
10,000 |
|
EKC |
|
BOA |
|
|
00000003083894 |
|
|
NY Workers Compensation |
|
|
5,390,063 |
|
EKC |
|
BOA |
|
|
00000003112818 |
|
|
West Virginia Worker’s Comp |
|
|
250,000 |
|
EKC |
|
BOA |
|
|
00000068052148 |
|
|
Old Republic Insurance |
|
|
12,000,000 |
|
EKC |
|
CITI |
|
|
61604621 |
|
|
Travelers |
|
|
3,100,000 |
|
EKC |
|
CITI |
|
|
NY-02805-30031820 |
|
|
NY Workers Compensation |
|
|
61,634,205 |
|
EKC |
|
CITI |
|
|
NY-02805-30035009 |
|
|
INA, Pacific, Atlantic Insurance Company |
|
|
1,066,540 |
|
EKC |
|
CITI |
|
|
NY-02805-30035285 |
|
|
Ohio Environmental Protection Agency |
|
|
1,600,000 |
|
EKC |
|
PNC |
|
|
00246234-00-000 |
|
|
National Union Fire Ins. |
|
|
400,000 |
|
EKC |
|
PNC |
|
|
18102534-00-000 |
|
|
Employment Dev Dept - State of Ca |
|
|
145,200 |
|
EKC |
|
PNC |
|
|
18110665-00-000 |
|
|
California Workers’ Compensation |
|
|
5,369,457 |
|
EKC |
|
PNC |
|
|
18111443-00-000 |
|
|
Georgia Self-Insurer |
|
|
215,000 |
|
EKC |
|
PNC |
|
|
18112459-00-000 |
|
|
Trenton Ground Well Water |
|
|
5,500 |
|
EKC |
|
PNC |
|
|
18113886-00-000 |
|
|
NYS Short Term |
|
|
96,000 |
|
EKC |
|
PNC |
|
|
18113948-00-000 |
|
|
Westchester Fire Insurance Company |
|
|
5,414,214 |
|
EKC |
|
PNC |
|
|
18113976-00-000 |
|
|
Virginia Extended Service Contract Provider Obligation |
|
|
100,000 |
|
EKC |
|
PNC |
|
|
18113860-00-000 |
|
|
North Carolina Workers’ Comp |
|
|
150,000 |
|
EKC |
|
PNC |
|
|
18114127-00-000 |
|
|
NJ Department of Environmental Protection |
|
|
500,000 |
|
EKC |
|
PNC |
|
|
18114414-00-000 |
|
|
Maryland Workers’ Compensation Commission |
|
|
100,000 |
|
Qualex |
|
CITI |
|
|
NY-02805-30034832 |
|
|
Comerica Bank - Texas |
|
|
995,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
98,541,179 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Schedule 5.02(a) Existing Liens
($M)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Entity |
|
Existing |
|
|
* |
|
|
Kodak Brasileira Comercio de Produtos para Imagem e Servicos Ltda |
|
|
188 |
|
|
|
|
|
Xxxxxxx Kodak Company |
|
|
22 |
|
|
|
|
|
Wheeling Insurance Ltd. |
|
|
10 |
|
|
|
|
|
Kodak India Private Limited |
|
|
4 |
|
|
|
|
|
Kodak Japan Ltd. |
|
|
3 |
|
|
|
|
|
Other |
|
|
2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
230 |
|
|
|
|
|
|
|
|
|
NOTE: Converted to USD using 3/31/11 Fx rates
|
|
|
* |
|
Primarily related to liens in certain long-standing tax
cases in the Brazilian court system where collateralization is
part of the judicial process. |
Schedule 5.02(d) Existing Debt
$M
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Entity |
|
Existing Debt |
|
|
* |
|
|
Kodak Germany (Sun Notes) |
|
$ |
120 |
|
|
|
|
|
Kodak Brasileira Comercio de Produtos para Imagem e Servicos Ltda |
|
|
18 |
|
|
|
|
|
Kodak Graphic Communications Canada Company |
|
|
11 |
|
|
|
|
|
Kodak Limited |
|
|
8 |
|
|
|
|
|
Kodak Mexicana S.A. de C.V. |
|
|
7 |
|
|
|
|
|
Kodak Nordic AB (Sweden) |
|
|
6 |
|
|
|
|
|
Kodak Argentina S.A.I.C. |
|
|
5 |
|
|
|
|
|
Kodak SA/NV (Belgium) |
|
|
2 |
|
|
|
|
|
Kodak India Private Limited |
|
|
2 |
|
|
|
|
|
Kodak, S.A. (Spain) |
|
|
2 |
|
|
|
|
|
Kodak S.p.A (Italy) |
|
|
1 |
|
|
|
|
|
Xxxxxxx Kodak Sarl |
|
|
1 |
|
|
|
|
|
Kodak New Zealand Limited |
|
|
1 |
|
|
|
|
|
Kodak (Hong Kong) Limited |
|
|
1 |
|
|
|
|
|
Qualex Inc. |
|
|
1 |
|
|
A |
|
|
Other |
|
|
2 |
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL Subsidiary Debt |
|
$ |
187 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EKC Debt (principal amounts where applicable) |
|
|
|
|
|
* |
|
|
Sun Note — US Portion |
|
$ |
30 |
|
|
* |
|
|
$250M Notes at 7.25% due 2013 |
|
|
250 |
|
|
* |
|
|
$400M Notes at 7.0% due 2017 |
|
|
400 |
|
|
* |
|
|
$500M Notes at 9.75% due 2018 |
|
|
500 |
|
|
* |
|
|
$3M Notes at 9.95% due 2018 |
|
|
3 |
|
|
* |
|
|
$250M Notes at 10.625% due 2019 |
|
|
250 |
|
|
* |
|
|
$10M Notes at 9.2% due 2021 |
|
|
10 |
|
|
|
|
|
EKC Letters of Credit, Surety Bonds, Guarantees and Other |
|
$ |
106 |
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL EKC Debt |
|
$ |
1,549 |
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL DEBT |
|
$ |
1,737 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Converted to USD at 3/31/11 Fx rates |
|
|
|
|
|
|
A |
|
|
Individually less than $1M; in aggregate total shown |
|
|
|
|
|
|
* |
|
|
Sum of these ($1,563) represents the principal amount of debt for borrowed money |
|
|
|
|
SCHEDULE 9.02
AGENT’S OFFICE;
CERTAIN ADDRESSES FOR NOTICES
BORROWER:
Xxxxxxx Kodak Company
000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
AGENT:
Agent’s Office
(for payments and Notices of Borrowing and interest election requests):
Bank of America, N.A.
00000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx (Operations)
Other Notices as Administrative Agent:
Bank of America, N.A.
00000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx (Operations)
(for payments and Requests for Credit Extensions in respect of the Canadian Revolving Credit
Facility):
Bank of America, N.A. (acting through its Canada branch)
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx, X0X 0X0,
Attention: Xxxxxx Sales Xx Xxxxxxx (Credit), Xxxxxx Xxxx (Operations)
CO-COLLATERAL AGENTS:
Bank of America, N.A.
Bank of America Business Capital
Bank of America Xxxxxxx Xxxxx
Bank of America, XX
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxxx
XX0-000-00-00
Xxxxxx, XX 00000
Attn: Xxxxxxx X. X’Xxxxx
Citigroup USA, Inc.
0000 Xxxxx Xx., Xxxx 0
Xxx Xxxxxx, Xxxxxxxx, 00000
Attention: Bank Loan Syndications Department
ISSUING BANK
Bank of America, N.A.
00000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxx (Operations)
EXHIBIT A — FORM OF NOTE
[TO BE COMPLETED PRIOR TO ISSUANCE WITH: APPROPRIATE LENDER INFORMATION, THE EFFECTIVE DATE, UPON
ISSUANCE TO AN INITIAL ISSUING BANK, OR THE DATE OF ASSIGNMENT, AND A PRINCIPAL AMOUNT UP TO THE
LENDER’S COMMITMENT]
U.S.$
FOR VALUE RECEIVED, the undersigned, [NAME OF BORROWER] (the “Borrower”), HEREBY
PROMISES TO PAY to the order of
_________________________ (the “Lender”) for the account of
its Applicable Lending Office on the Termination Date (each as defined in the Credit Agreement
referred to below) the principal sum of U.S.$[amount of the Lender’s Commitment in figures] or, if
less, the aggregate principal amount of the Advances made by the Lender to the Borrower pursuant to
the Second Amended and Restated Credit Agreement, dated as of April 26, 2011, among the Borrowers,
the Lender and certain other lenders party thereto, and Bank of America, N.A., as Agent for the
Lender and such other lenders (as amended or modified from time to time, the “Credit
Agreement”) outstanding on the Termination Date. Capitalized terms used, but not defined, in
this Note are used with the meaning ascribed thereto in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal amount of each Advance from the
date of such Advance until such principal amount is paid in full, at such interest rates, and
payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United States of America to
Bank of America, N.A., as Agent, at Bank of America, N.A. 00000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx,
XX 00000 Attn: Xxxxxxxx Xxxxxxx (Operations), in same day funds. Each Advance owing to the Lender
by the Borrower pursuant to the Credit Agreement, and all payments made on account of principal
thereof, shall be recorded by the Lender and, prior to any transfer hereof, endorsed on the grid
attached hereto which is part of this Promissory Note.
This Promissory Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement. The Credit Agreement, among other things, (i) provides for the making of
Advances by the Lender to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the U.S. dollar amount first above mentioned, the indebtedness of the Borrower
resulting from each such Advance being evidenced by this Promissory Note and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain stated events and
also for prepayments on account of principal hereof prior to the maturity hereof upon the terms and
conditions therein specified.
Date: ____________, ____
|
|
|
|
|
|
[XXXXXXX KODAK COMPANY]
[KODAK CANADA INC.]
|
|
|
By |
|
|
|
|
Title: |
|
|
|
|
|
ALLONGE TO PROMISSORY NOTE
DATED _________, 200_
OF
XXXXXXX KODAK COMPANY
KODAK CANADA INC.
ADVANCES AND PAYMENTS OF PRINCIPAL
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of |
|
|
|
|
|
|
|
|
Amount of |
|
Principal Paid |
|
Unpaid Principal |
|
Notation |
Date |
|
|
|
Advance |
|
or Prepaid |
|
Balance |
|
Made By |
EXHIBIT B — FORM OF NOTICE OF
BORROWING
Bank of America, N.A., as Agent
for the Lenders party
to the Credit Agreement
[_______________]
Attn: [________]
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, [NAME OF BORROWER], refers to the Second Amended and Restated Credit
Agreement, dated as of April 26, 2011 (as amended or modified from time to time, the “Credit
Agreement”), among the undersigned, [Kodak Canada Inc. / Xxxxxxx Kodak Company,] the Lenders
party thereto and Bank of America N.A., as Agent for said Lenders, and hereby gives you notice,
irrevocably, pursuant to Section 2.02 of the Credit Agreement that the undersigned hereby requests
a Borrowing under the Credit Agreement, and in that connection sets forth below the information
relating to such Borrowing (the “Proposed Borrowing”) as required by Section 2.02(a) of the
Credit Agreement (capitalized terms used, but not defined, in this Notice are used with the meaning
ascribed thereto in the Credit Agreement):
(i) The Business Day of the Proposed Borrowing is _______________, 200.
(ii) The Borrowings is a [US Borrowing] [Canadian Borrowing].
(iii) The Type of Advances comprising the Proposed Borrowing is [Base Rate Advance]
[Eurodollar Rate Advance].
(iv) The aggregate amount of the Proposed Borrowing is $______________.
[(v) The initial Interest Period for each Eurodollar Rate Advance made as part of the
Proposed Borrowing is _____ month[s].]1
The undersigned hereby certifies that the following statements are true on the date hereof,
and will be true on the date of the Proposed Borrowing:
(A) the representations and warranties of each Borrower and each Significant Loan Party
contained in each Loan Document to which it is a party are correct as of the date
|
|
|
1 |
|
To be used for Eurodollar Rate Advances. |
hereof, before and after giving effect to the Proposed Borrowing and to the application of the
proceeds therefrom, as though made on the date hereof,
(B) no event has occurred and is continuing, or would result from the Proposed Borrowing or
from the application of the proceeds therefrom, that constitutes a Default;
(C) no Borrowing Base Deficiency will exist after giving effect to the Proposed Borrowing and
to the application of the proceeds therefrom; and
(D) if as a result of the Proposed Borrowing, Excess Availability would be below the greater
of (i) $40,000,000 and (ii) 12.5% of the sum of the Canadian Revolving Credit Facility plus the US
Revolving Credit Facility, the Company shall have demonstrated pro forma compliance with the Fixed
Charge Coverage Ratio.
|
|
|
|
|
|
Very truly yours,
[NAME OF BORROWER]
|
|
|
By |
|
|
|
|
Title: |
|
|
|
|
|
|
EXHIBIT C — FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Second Amended and Restated Credit Agreement, dated as of April 26,
2011 (as amended, restated, supplemented or modified from time to time, the “Credit
Agreement”) among XXXXXXX KODAK COMPANY, a New Jersey corporation (the “Company”),
Kodak Canada Inc., the Lenders (as defined in the Credit Agreement) and Bank of America N.A., as
agent for the Lenders (the “Agent”). Terms defined in the Credit Agreement are used herein
with the same meaning.
The “Assignor” and the “Assignee” referred to on Schedule 1 hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases
and assumes from the Assignor, an interest in and to the Assignor’s rights and obligations under
[US Revolving Credit Facility / Canadian Revolving Credit Facility] of the Credit Agreement as of
the date hereof equal to the amount of the Assignor’s Commitment specified for [US Revolving Credit
Facility / Canadian Revolving Credit Facility] on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement as specified on Schedule 1 hereto [together with
participations in Letters of Credit held by the Assignor on the date hereof]. After giving effect
to such sale and assignment, the Assignee’s Commitment and the amount of the Advances owing to the
Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such interest is free and clear of any adverse
claim; (ii) makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created or purported to be created under or
in connection with, the Credit Agreement or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no responsibility with respect to
the financial condition of any Loan Party or the performance or observance by any Loan Party of any
of its obligations under the Loan Documents or any other instrument or document furnished pursuant
thereto; [and (iv) attaches the Notes[, if any] held by the Assignor [and requests that the Agent
exchange such Note for a new Note payable to the order of [the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new Notes payable to the order of the
Assignee in an amount equal to the Commitment assumed by the Assignee pursuant hereto and] the
Assignor in an amount equal to the Commitment retained by the Assignor under the Credit Agreement,
[respectively,] as specified on Schedule 1 hereto].
3. The Assignee (i) confirms that it has received a copy of the Credit Agreement, together
with copies of the financial information delivered to Assignor pursuant to Section 5.01(h)(i) and
(ii) thereof and such other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Assignment and Acceptance; (ii) agrees that it
will, independently and without reliance upon the Agent, the
Assignor or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Agent by the terms thereof, together
with such powers and discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any U.S. Internal
Revenue Service forms required under Section 2.14(e) of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance, it will be delivered to the
Agent for acceptance and recording by the Agent. The effective date for this Assignment and
Acceptance (the “Assignment Effective Date”) shall be the date of acceptance hereof by the
Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the Assignment Effective Date, (i)
the Assignee shall be a party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and
be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the Assignment Effective
Date, the Agent shall make all payments under the Credit Agreement and the applicable Notes in
respect of the interest assigned hereby (including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee. The Assignor and Assignee shall
make all appropriate adjustments in payments under the Credit Agreement and the applicable Notes
for periods prior to the Assignment Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in accordance with, the
laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of Schedule 1 to this Assignment and Acceptance by telecopier
shall be effective as delivery of a manually executed counterpart of this Assignment and
Acceptance.
Schedule 1
to
Assignment and Acceptance
|
|
|
|
|
|
|
1.
|
|
Assignor[s]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2.
|
|
Assignee[s]:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]] |
|
|
|
|
|
|
|
3.
|
|
Borrower(s):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4.
|
|
Administrative Agent: Bank of America, N.A., as the administrative agent under the
Credit Agreement |
|
|
|
5.
|
|
Credit Agreement: Credit Agreement, dated as of April 26, 2011, among Xxxxxxx Kodak
Company, Kodak Canada Inc., the Lenders from time to time party thereto, and Bank of America,
N.A., as Agent and Issuing Bank |
|
|
|
6.
|
|
Assigned Interest[s]: |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aggregate |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
US or Canadian |
|
|
Amount of |
|
|
Amount of |
|
|
Percentage |
|
|
|
|
|
|
|
|
|
|
Revolving |
|
|
Commitments |
|
|
Commitments |
|
|
Assigned of |
|
|
CUSIP |
|
Assignor[s]2 |
|
Assignee[s]3 |
|
|
Credit Facility |
|
for all Lenders4 |
|
Assigned |
|
|
Commitment5 |
|
|
|
Number |
|
|
|
|
|
|
|
|
|
|
|
$ |
________________ |
|
|
$ |
_________ |
|
|
|
____________ |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
________________ |
|
|
$ |
_________ |
|
|
|
____________ |
% |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$ |
________________ |
|
|
$ |
_________ |
|
|
|
____________ |
% |
|
|
|
|
|
|
|
[7.
|
|
Trade Date: __________________]6 |
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE
THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
|
|
|
2 |
|
List each Assignor, as appropriate. |
|
3 |
|
List each Assignee, as appropriate. |
|
4 |
|
Amounts in this column and in the column
immediately to the right to be adjusted by the counterparties to take into
account any payments or prepayments made between the Trade Date and the
Effective Date. |
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5 |
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Set forth, to at least 9 decimals, as a
percentage of the Commitment of all Lenders thereunder. |
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6 |
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To be completed if the Assignor and the
Assignee intend that the minimum assignment amount is to be determined as of
the Trade Date. |
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR
[NAME OF ASSIGNOR]
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By: |
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Title: |
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ASSIGNEE
[NAME OF ASSIGNEE] |
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By: |
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Title: |
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Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address] |
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Accepted [and Approved] this
__________ day of _______________, 200_
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BANK OF AMERICA N.A., as Agent
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By |
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Title: |
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[Approved this __________ day
of _______________, 200_ |
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XXXXXXX KODAK COMPANY/KODAK CANADA INC.
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By |
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] |
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Title: |
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EXHIBIT D-1 — FORM OF
US SECURITY AGREEMENT
[TO BE DELIVERED SEPARATELY]
EXHIBIT D-2 — FORM OF
CANADIAN SECURITY AGREEMENT
[TO BE DELIVERED SEPARATELY]
EXHIBIT F — FORM OF
GUARANTY SUPPLEMENT
_________ __, 20__
To each of the Lenders
party to the Credit Agreement
(as defined below) and to Bank of America N.A.,
as Agent for such Lenders
Ladies and Gentlemen:
Reference is made to the Second Amended and Restated Credit Agreement, dated as of April 26,
2011 (as amended or modified from time to time, the “Credit Agreement”) among XXXXXXX KODAK
COMPANY, a New Jersey corporation (the “Company”), Kodak Canada Inc., the Lenders (as
defined in the Credit Agreement) and Bank of America N.A., as agent for the Lenders (the
“Agent”). Terms defined in the Credit Agreement are used herein with the same meaning.
Section 1. Guaranty; Limitation of Liability. (a) The undersigned is a [US
Subsidiary Guarantor][Canadian Subsidiary Guarantor] and hereby absolutely, unconditionally and
irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date
of a required prepayment or by acceleration, demand or otherwise, of all [Comprehensive Guaranteed
Obligations] [Canadian Guaranteed Obligations], and agrees to pay any and all expenses (including,
without limitation, fees and expenses of counsel) incurred by the Agent or any Lender in enforcing
any rights under this Guaranty Supplement, the Guaranty or any other Loan Document. Without
limiting the generality of the foregoing, the undersigned’s liability shall extend to all amounts
that constitute part of the applicable Guaranteed Obligations and would be owed by any other Loan
Party to the Agent or any Lender under or in respect of the Loan Documents but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or
similar proceeding involving such other Loan Party.
(b) The undersigned, and by its acceptance of this Guaranty Supplement, the Agent and each
Lender, hereby confirms that it is the intention of all such Persons that this Guaranty Supplement,
the Guaranty and the obligations of the undersigned hereunder and thereunder not constitute a
fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent
applicable to this Guaranty Supplement, the Guaranty and the obligations of the undersigned
hereunder and thereunder. To effectuate the foregoing intention, the Agent, the Lenders and the
undersigned hereby irrevocably agree that the obligations of the undersigned under this Guaranty
Supplement and the Guaranty at any time shall be limited to the maximum amount as will result in
the obligations of the undersigned under this Guaranty Supplement and the Guaranty not constituting
a fraudulent transfer or conveyance.
(c) The undersigned hereby unconditionally and irrevocably agrees that in the event any
payment shall be required to be made to the Agent or any Lender under this Guaranty Supplement, the
Guaranty or any other guaranty, the undersigned will contribute, to the maximum extent permitted by
applicable law, such amounts to each other Guarantor and each other guarantor so as to maximize the
aggregate amount paid to the Agent and the Lenders under or in respect of the Loan Documents.
Section 2. Obligations Under the Guaranty. The undersigned hereby agrees, as of the
date first above written, to be bound as a Guarantor by all of the terms and conditions of the
Guaranty to the same extent as each of the other Guarantors thereunder. The undersigned further
agrees, as of the date first above written, that each reference in the Guaranty to an “Additional
Guarantor” or a “Guarantor” shall also mean and be a reference to the undersigned, and each
reference in any other Loan Document to a [“US Subsidiary Guarantor”][“Canadian Subsidiary
Guarantor”] or a “Loan Party” shall also mean and be a reference to the undersigned.
Section 3. Representations and Warranties. The undersigned hereby makes each
representation and warranty set forth in Section 4.01 of the Credit Agreement to the same extent as
each other Guarantor.
Section 4. Delivery by Telecopier. Delivery of an executed counterpart of a
signature page to this Guaranty Supplement by telecopier or .pdf shall be effective as delivery of
an original executed counterpart of this Guaranty Supplement.
Section 5. Governing Law; Jurisdiction; Waiver of Jury Trial, Etc. (a) THIS
GUARANTY SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK.
(b) SUBMISSION TO JURISDICTION. THE UNDERSIGNED IRREVOCABLY AND UNCONDITIONALLY
SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN THE BOROUGH OF MANHATTAN AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS GUARANTY SUPPLEMENT, THE GUARANTY OR ANY OTHER LOAN DOCUMENT, OR FOR
RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND THE UNDERSIGNED IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL
COURT. THE UNDERSIGNED AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER
MANNER PROVIDED BY LAW. NOTHING IN THIS GUARANTY SUPPLEMENT, THE GUARANTY OR IN ANY OTHER LOAN
DOCUMENT SHALL AFFECT ANY RIGHT THAT THE AGENT, ANY LENDER OR ANY ISSUING BANK MAY
OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY SUPPLEMENT, THE GUARANTY
OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWERS OR ANY OTHER LOAN PARTIES OR ITS PROPERTIES IN THE
COURTS OF ANY JURISDICTION.
(c) WAIVER OF VENUE. THE UNDERSIGNED IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY SUPPLEMENT,
THE GUARANTY OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.
THE UNDERSIGNED HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE
DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d) SERVICE OF PROCESS. THE UNDERSIGNED IRREVOCABLY CONSENTS TO SERVICE OF PROCESS
IN THE MANNER PROVIDED FOR NOTICES IN SECTION 9.02. NOTHING IN THIS GUARANTY SUPPLEMENT WILL
AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE
LAW.
(e) THE UNDERSIGNED HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS GUARANTY SUPPLEMENT, THE GUARANTY OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY
OTHER THEORY). THE UNDERSIGNED HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAVE BEEN
INDUCED TO ENTER INTO THIS GUARANTY SUPPLEMENT, THE GUARANTY AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
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Very truly yours,
[NAME OF ADDITIONAL GUARANTOR]
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By |
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Title: |
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EXHIBIT G — FORM OF
BORROWING BASE CERTIFICATE
[TO BE DELIVERED SEPARATELY]